Terrorism and Human Rights Reader Part I (1)

8/9/2019 Terrorism and Human Rights Reader Part I (1)

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Pál Sonnevend

Terrorism and Human Rights

Cases and materials

Part I

2013


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INTERNATIONAL CONVENTION

FOR THE SUPPRESSION

OF THE FINANCING

OF TERRORISM

UNITED NATIONS

1999excerpts

[…]

Article 1

For the purposes of this Convention:

1. „Funds” means assets of every kind, whether tangible or intangible, movable or

immovable, however acquired, and legal documents or instruments in any form, including

electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to,

bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds,

drafts, letters of credit.2. „A State or governmental facility” means any permanent or temporary facility or

conveyance that is used or occupied by representatives of a State, members of Government,

the legislature or the judiciary or by officials or employees of a State or any other public

authority or entity or by employees or officials of an intergovernmental organization in

connection with their official duties.

3.”Proceeds” means any funds derived from or obtained, directly or indirectly, through

the commission of an offence set forth in article 2.

Article 2

1. Any person commits an offence within the meaning of this Convention if that person byany means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the

intention that they should be used or in the knowledge that they are to be used, in full or in

part, in order to carry out:

(a) An act which constitutes an offence within the scope of and as defined in one of

the treaties listed in the annex; or

(b) Any other act intended to cause death or serious bodily injury to a civilian, or to

any other person not taking an active part in the hostilities in a situation of armed conflict,

when the purpose of such act, by its nature or context, is to intimidate a population, or to

compel a government or an international organization to do or to abstain from doing any act.

2. (a) On depositing its instrument of ratification, acceptance, approval or accession, a

State Party which is not a party to a treaty listed in the annex may declare that, in the

application of this Convention to the State Party, the treaty shall be deemed not to be included

in the annex referred to in paragraph 1, subparagraph (a). The declaration shall cease to have

effect as soon as the treaty enters into force for the State Party, which shall notify the

depositary of this fact;

(b) When a State Party ceases to be a party to a treaty listed in the annex, it may

make a declaration as provided for in this article, with respect to that treaty.

3. For an act to constitute an offence set forth in paragraph 1, it shall not be necessary that

the funds were actually used to carry out an offence referred to in paragraph 1, subparagraphs

(a) or (b).

4. Any person also commits an offence if that person attempts to commit an offence as set

forth in paragraph 1 of this article.


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5. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 4 of this

article;

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 4

of this article;

(c) Contributes to the commission of one or more offences as set forth in paragraphs 1 or 4 of this article by a group of persons acting with a common purpose. Such

contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the

group, where such activity or purpose involves the commission of an offence as set

forth in paragraph 1 of this article; or

(ii) Be made in the knowledge of the intention of the group to commit an offence as

set forth in paragraph 1 of this article.

Article 3

This Convention shall not apply where the offence is committed within a single State,the alleged offender is a national of that State and is present in the territory of that State and

no other State has a basis under article 7, paragraph 1, or article 7, paragraph 2, to exercise

jurisdiction, except that the provisions of articles 12 to 18 shall, as appropriate, apply in those

cases.

Article 4

Each State Party shall adopt such measures as may be necessary:

(a) To establish as criminal offences under its domestic law the offences set forth in

article 2;

(b) To make those offences punishable by appropriate penalties which take intoaccount the grave nature of the offences.

Article 5

1. Each State Party, in accordance with its domestic legal principles, shall take the

necessary measures to enable a legal entity located in its territory or organized under its laws

to be held liable when a person responsible for the management or control of that legal entity

has, in that capacity, committed an offence set forth in article 2. Such liability may be criminal,

civil or administrative.

2. Such liability is incurred without prejudice to the criminal liability of individuals having

committed the offences.

3. Each State Party shall ensure, in particular, that legal entities liable in accordance with

paragraph 1 above are subject to effective, proportionate and dissuasive criminal, civil or

administrative sanctions. Such sanctions may include monetary sanctions.

Article 6

Each State Party shall adopt such measures as may be necessary, including, where

appropriate, domestic legislation, to ensure that criminal acts within the scope of this

Convention are under no circumstances justifiable by considerations of a political,

philosophical, ideological, racial, ethnic, religious or other similar nature.

Article 7

1. Each State Party shall take such measures as may be necessary to establish its


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jurisdiction over the offences set forth in article 2 when:

(a) The offence is committed in the territory of that State;

(b) The offence is committed on board a vessel flying the flag of that State or an

aircraft registered under the laws of that State at the time the offence is committed;

(c) The offence is committed by a national of that State.

2. A State Party may also establish its jurisdiction over any such offence when:(a) The offence was directed towards or resulted in the carrying out of an offence

referred to in article 2, paragraph 1, subparagraph (a) or (b), in the territory of or against a

national of that State;

(b) The offence was directed towards or resulted in the carrying out of an offence

referred to in article 2, paragraph 1, subparagraph (a) or (b), against a State or government

facility of that State abroad, including diplomatic or consular premises of that State;

(c) The offence was directed towards or resulted in an offence referred to in article 2,

paragraph 1, subparagraph (a) or (b), committed in an attempt to compel that State to do or

abstain from doing any act;

(d) The offence is committed by a stateless person who has his or her habitualresidence in the territory of that State;

(e) The offence is committed on board an aircraft which is operated by the

Government of that State.

3. Upon ratifying, accepting, approving or acceding to this Convention, each State Party

shall notify the Secretary-General of the United Nations of the jurisdiction it has established in

accordance with paragraph 2. Should any change take place, the State Party concerned shall

immediately notify the Secretary-General.

4. Each State Party shall likewise take such measures as may be necessary to establish its

jurisdiction over the offences set forth in article 2 in cases where the alleged offender is

present in its territory and it does not extradite that person to any of the States Parties thathave established their jurisdiction in accordance with paragraphs 1 or 2.

5. When more than one State Party claims jurisdiction over the offences set forth in article

2, the relevant States Parties shall strive to coordinate their actions appropriately, in particular

concerning the conditions for prosecution and the modalities for mutual legal assistance.

6. Without prejudice to the norms of general international law, this Convention does not

exclude the exercise of any criminal jurisdiction established by a State Party in accordance

with its domestic law.

Article 8

1. Each State Party shall take appropriate measures, in accordance with its domestic legal

principles, for the identification, detection and freezing or seizure of any funds used or

allocated for the purpose of committing the offences set forth in article 2 as well as the

proceeds derived from such offences, for purposes of possible forfeiture.

2. Each State Party shall take appropriate measures, in accordance with its domestic legal

principles, for the forfeiture of funds used or allocated for the purpose of committing the

offences set forth in article 2 and the proceeds derived from such offences.

3. Each State Party concerned may give consideration to concluding agreements on the

sharing with other States Parties, on a regular or case-by-case basis, of the funds derived

from the forfeitures referred to in this article.

4. Each State Party shall consider establishing mechanisms whereby the funds derived

from the forfeitures referred to in this article are utilized to compensate the victims of offences

referred to in article 2, paragraph 1, subparagraph (a) or (b), or their families.


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5. The provisions of this article shall be implemented without prejudice to the rights of

third parties acting in good faith.

Article 9

1. Upon receiving information that a person who has committed or who is alleged to have

committed an offence set forth in article 2 may be present in its territory, the State Partyconcerned shall take such measures as may be necessary under its domestic law to investigate

the facts contained in the information.

2. Upon being satisfied that the circumstances so warrant, the State Party in whose

territory the offender or alleged offender is present shall take the appropriate measures under

its domestic law so as to ensure that person=s presence for the purpose of prosecution or

extradition.

3. Any person regarding whom the measures referred to in paragraph 2 are being taken

shall be entitled to:

(a) Communicate without delay with the nearest appropriate representative of the

State of which that person is a national or which is otherwise entitled to protect that person=srights or, if that person is a stateless person, the State in the territory of which that person

habitually resides;

(b) Be visited by a representative of that State;

(c) Be informed of that person=s rights under subparagraphs (a) and (b).

4. The rights referred to in paragraph 3 shall be exercised in conformity with the laws and

regulations of the State in the territory of which the offender or alleged offender is present,

subject to the provision that the said laws and regulations must enable full effect to be given to

the purposes for which the rights accorded under paragraph 3 are intended.

5. The provisions of paragraphs 3 and 4 shall be without prejudice to the right of any

State Party having a claim to jurisdiction in accordance with article 7, paragraph 1,subparagraph (b), or paragraph 2, subparagraph (b), to invite the International Committee of

the Red Cross to communicate with and visit the alleged offender.

6. When a State Party, pursuant to the present article, has taken a person into custody, it

shall immediately notify, directly or through the Secretary-General of the United Nations, the

States Parties which have established jurisdiction in accordance with article 7, paragraph 1 or

2, and, if it considers it advisable, any other interested States Parties, of the fact that such

person is in custody and of the circumstances which warrant that person=s detention. The

State which makes the investigation contemplated in paragraph 1 shall promptly inform the

said States Parties of its findings and shall indicate whether it intends to exercise jurisdiction.

Article 10

1. The State Party in the territory of which the alleged offender is present shall, in cases to

which article 7 applies, if it does not extradite that person, be obliged, without exception

whatsoever and whether or not the offence was committed in its territory, to submit the case

without undue delay to its competent authorities for the purpose of prosecution, through

proceedings in accordance with the laws of that State. Those authorities shall take their

decision in the same manner as in the case of any other offence of a grave nature under the

law of that State.

2. Whenever a State Party is permitted under its domestic law to extradite or otherwise

surrender one of its nationals only upon the condition that the person will be returned to that

State to serve the sentence imposed as a result of the trial or proceeding for which the

extradition or surrender of the person was sought, and this State and the State seeking the


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extradition of the person agree with this option and other terms they may deem appropriate,

such a conditional extradition or surrender shall be sufficient to discharge the obligation set

forth in paragraph 1.

Article 11

1. The offences set forth in article 2 shall be deemed to be included as extraditableoffences in any extradition treaty existing between any of the States Parties before the entry

into force of this Convention. States Parties undertake to include such offences as extraditable

offences in every extradition treaty to be subsequently concluded between them.

2. When a State Party which makes extradition conditional on the existence of a treaty

receives a request for extradition from another State Party with which it has no extradition

treaty, the requested State Party may, at its option, consider this Convention as a legal basis

for extradition in respect of the offences set forth in article 2. Extradition shall be subject to the

other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty

shall recognize the offences set forth in article 2 as extraditable offences between themselves,subject to the conditions provided by the law of the requested State.

4. If necessary, the offences set forth in article 2 shall be treated, for the purposes of

extradition between States Parties, as if they had been committed not only in the place in

which they occurred but also in the territory of the States that have established jurisdiction in

accordance with article 7, paragraphs 1 and 2.

5. The provisions of all extradition treaties and arrangements between States Parties with

regard to offences set forth in article 2 shall be deemed to be modified as between States

Parties to the extent that they are incompatible with this Convention.

[…]

Annex

1. Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on

16 December 1970.

2. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,

done at Montreal on 23 September 1971.

3. Convention on the Prevention and Punishment of Crimes against Internationally

Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the

United Nations on 14 December 1973.

4. International Convention against the Taking of Hostages, adopted by the General

Assembly of the United Nations on 17 December 1979.

5. Convention on the Physical Protection of Nuclear Material, adopted at Vienna on

3 March 1980.

6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving

International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful

Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988.

7. Convention for the Suppression of Unlawful Acts against the Safety of Maritime

Navigation, done at Rome on 10 March 1988.

8. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms

located on the Continental Shelf, done at Rome on 10 March 1988.

9. International Convention for the Suppression of Terrorist Bombings, adopted by the

General Assembly of the United Nations on 15 December 1997.


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Convention for the Protection of Human Rights and Fundamental Freedoms as amended by

Protocol No. 11

Rome, 4.XI.1950

Excerpts

[…]

Article 1 . Obligation to respect human rightsThe High Contracting Parties shall secure to everyone within their jurisdiction the rights and

freedoms defined in Section I of this Convention.

SECTION I . RIGHTS AND FREEDOMS

Article 2 . Right to life

1 Everyone's right to life shall be protected by law. No one shall be deprived of his life

intentionally save in the execution of a sentence of a court following his conviction of a crime for

which this penalty is provided by law.

2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it

results from the use of force which is no more than absolutely necessary:a in defence of any person from unlawful violence;

b in order to effect a lawful arrest or to prevent the escape of a person

lawfully detained;

c in action lawfully taken for the purpose of quelling a riot or

insurrection.

Article 3 . Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4 . Prohibition of slavery and forced labour1 No one shall be held in slavery or servitude.

2 No one shall be required to perform forced or compulsory labour.

3 For the purpose of this article the term .forced or compulsory labour. shall not include:

a any work required to be done in the ordinary course of detention imposed according to the

provisions of Article 5 of this Convention or during conditional release from such detention;

b any service of a military character or, in case of conscientious objectors in countries where

they are recognised, service exacted instead of compulsory military service;

c any service exacted in case of an emergency or calamity threatening the life or well-being of the

community;

d any work or service which forms part of normal civic obligations.

Article 5 . Right to liberty and security

1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty

save in the following cases and in accordance with a procedure prescribed by law:

a the lawful detention of a person after conviction by a competent court;

b the lawful arrest or detention of a person for non-compliance with the lawful order of a court or

in order to secure the fulfilment of any obligation prescribed by law;

c the lawful arrest or detention of a person effected for the purpose of bringing him before the

competent legal authority on reasonable suspicion of having committed an offence or when it

is reasonably considered necessary to prevent his committing an offence or fleeing after having done

so;


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d the detention of a minor by lawful order for the purpose of educational supervision or his

lawful detention for the purpose of bringing him before the competent legal authority;

e the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons

of unsound mind, alcoholics or drug addicts or vagrants;

f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the

country or of a person against whom action is being taken with a view to deportation orextradition.

2 Everyone who is arrested shall be informed promptly, in a language which he understands,

of the reasons for his arrest and of any charge against him.

3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article

shall be brought promptly before a judge or other officer authorised by law to exercise judicial

power and shall be entitled to trial within a reasonable time or to release pending trial.

Release may be conditioned by guarantees to appear for trial.

4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take

proceedings by which the lawfulness of his detention shall be decided speedily by a court and

his release ordered if the detention is not lawful.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.

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 specialcircumstances 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 7 . No punishment without law

1 No one shall be held guilty of any criminal offence on account of any act or omission which did not

constitute a criminal offence under national or international law at the time when it was committed.

Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal

offence was committed.


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2 This article shall not prejudice the trial and punishment of any person for any act or omission

which, at the time when it was committed, was criminal according to the general principles of law

recognised by civilised nations.

Article 8 . Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.2 There shall be no interference by a public authority with the exercise of this right except such as is

in accordance with the law and is necessary in a democratic society in the interests of national

security, public safety or the economic well-being of the country, for the prevention of disorder or

crime, for the protection of health or morals, or for the protection of the rights and freedoms of

others.

Article 9 . Freedom of thought, conscience and religion

1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom

to change his religion or belief and freedom, either alone or in community with others and in

public or private, to manifest his religion or belief, in worship, teaching, practice andobservance.

2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are

prescribed by law and are necessary in a democratic society in the interests of public safety, for

the protection of public order, health or morals, or for the protection of the rights and freedoms

of others.

Article 10 . Freedom of expression

1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions

and to receive and impart information and ideas without interference by public authority and

regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be

subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are

necessary in a democratic society, in the interests of national security, territorial integrity or

public safety, for the prevention of disorder or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for preventing the disclosure of information received

in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 . Freedom of assembly and association

1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others,

including the right to form and to join trade unions for the protection of his interests.

2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by

law and are necessary in a democratic society in the interests of national security or public

safety, for the prevention of disorder or crime, for the protection of health or morals or for the

protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful

restrictions on the exercise of these rights by members of the armed forces, of the police or of

the administration of the State.

Article 12 . Right to marry

Men and women of marriageable age have the right to marry and to found a family, according

to the national laws governing the exercise of this right.


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Article 13 . Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an

effective remedy before a national authority notwithstanding that the violation has been committed

by persons acting in an official capacity.

Article 14 . Prohibition of discriminationThe enjoyment of the rights and freedoms set forth in this Convention shall be secured without

discrimination on any ground such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national minority, property, birth or other status.

Article 15 . Derogation in time of emergency

1 In time of war or other public emergency threatening the life of the nation any High

Contracting Party may take measures derogating from its obligations under this Convention to the

extent strictly required by the exigencies of the situation, provided that such measures are not

inconsistent with its other obligations under international law.

2 No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, orfrom Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

3 Any High Contracting Party availing itself of this right of derogation shall keep the Secretary

General of the Council of Europe fully informed of the measures which it has taken and the

reasons therefor. It shall also inform the Secretary General of the Council of Europe when such

measures have ceased to operate and the provisions of the Convention are again being fully executed.

Article 16 . Restrictions on political activity of aliens

Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting

Parties from imposing restrictions on the political activity of aliens.

Article 17 . Prohibition of abuse of rights

Nothing in this Convention may be interpreted as implying for any State, group or person any right

to engage in any activity or perform any act aimed at the destruction of any of the rights and

freedoms set forth herein or at their limitation to a greater extent than is provided for in the

Convention.

Article 18 . Limitation on use of restrictions on rights

The restrictions permitted under this Convention to the said rights and freedoms shall not be

applied for any purpose other than those for which they have been prescribed.


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International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR

Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.

Excerpts

[…]

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals

within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without

distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national

or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the

present Covenant undertakes to take the necessary steps, in accordance with its constitutional

processes and with the provisions of the present Covenant, to adopt such legislative or other measures

as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have aneffective remedy, notwithstanding that the violation has been committed by persons acting in an

official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by

competent judicial, administrative or legislative authorities, or by any other competent authority

provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and women to

the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4

1 . In time of public emergency which threatens the life of the nation and the existence of which is

officially proclaimed, the States Parties to the present Covenant may take measures derogating from

their obligations under the present Covenant to the extent strictly required by the exigencies of the

situation, provided that such measures are not inconsistent with their other obligations under

international law and do not involve discrimination solely on the ground of race, colour, sex, language,

religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this

provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately

inform the other States Parties to the present Covenant, through the intermediary of the Secretary-

General of the United Nations, of the provisions from which it has derogated and of the reasons by

which it was actuated. A further communication shall be made, through the same intermediary, on the

date on which it terminates such derogation.

[…]

Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall

be arbitrarily deprived of his life.


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2. In countries which have not abolished the death penalty, sentence of death may be imposed only for

the most serious crimes in accordance with the law in force at the time of the commission of the crime

and not contrary to the provisions of the present Covenant and to the Convention on the Prevention

and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final

judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in thisarticle shall authorize any State Party to the present Covenant to derogate in any way from any

obligation assumed under the provisions of the Convention on the Prevention and Punishment of the

Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.

Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of

age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by

any State Party to the present Covenant.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In

particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 8

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3.(a) No one shall be required to perform forced or compulsory labour;

(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour

may be imposed as a punishment for a crime, the performance of hard labour in pursuance of asentence to such punishment by a competent court;

(c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include:

(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is

under detention in consequence of a lawful order of a court, or of a person during conditional release

from such detention;

(ii) Any service of a military character and, in countries where conscientious objection is recognized,

any national service required by law of conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the

community;

(iv) Any work or service which forms part of normal civil obligations.

[…]

Article 11

No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

[…]

Ar ticle 15

1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not

constitute a criminal offence, under national or international law, at the time when it was committed.

Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal


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offence was committed. If, subsequent to the commission of the offence, provision is made by law for

the imposition of the lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission

which, at the time when it was committed, was criminal according to the general principles of law

recognized by the community of nations.

Article 16

Everyone shall have the right to recognition everywhere as a person before the law.

[…]

Ar ticle 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall

include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually

or in community with others and in public or private, to manifest his religion or belief in worship,

observance, practice and teaching.2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion

or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are

prescribed by law and are necessary to protect public safety, order, health, or morals or the

fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to

have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and

moral education of their children in conformity with their own convictions.


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AMERICAN CONVENTION ON HUMAN RIGHTS "PACT OF SAN JOSE, COSTA RICA"

Article 27. Suspension of Guarantees

1. In time of war, public danger, or other emergency that threatens the independence or security of aState Party, it may take measures derogating from its obligations under the present Convention to theextent and for the period of time strictly required by the exigencies of the situation, provided thatsuch measures are not inconsistent with its other obligations under international law and do notinvolve discrimination on the ground of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize any suspension of the following articles: Article 3(Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment),Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12(Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right toParticipate in Government), or of the judicial guarantees essential for the protection of such rights.

3. Any State Party availing itself of the right of suspension shall immediately inform the other StatesParties, through the Secretary General of the Organization of American States, of the provisions theapplication of which it has suspended, the reasons that gave rise to the suspension, and the date set

for the termination of such suspension.


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ECtHR 01.07.1961, Lawless v. Ireland, Application No. 332/57

Excerpts

20. Whereas the Court is called upon to decide whether the detention of G.R. Lawless from 13th July

to 11th December 1957 under the Offences against the State (Amendment) Act, 1940, was justified,despite Articles 5 and 6 (art. 5, art. 6) of the Convention, by the right of derogation allowed to the

High Contracting Parties in certain exceptional circumstances under Article 15 (art. 15) of the

Convention;

[…]

22. Whereas it follows from these provisions that, without being released from all its undertakings

assumed in the Convention, the Government of any High Contracting Party has the right, in case of

war or public emergency threatening the life of the nation, to take measures derogating from its

obligations under the Convention other than those named in Article 15, paragraph 2 (art. 15-2), pro-

vided that such measures are strictly limited to what is required by the exigen-cies of the situation and

also that they do not conflict with other obligations under international law; whereas it is for the Courtto determine whether the conditions laid down in Article 15 (art. 15) for the exercise of the exceptional

right of derogation have been fulfilled in the present case;

(a) As to the existence of a public emergency threatening the life of the nation.

23. Whereas the Irish Government, by a Proclamation dated 5th July 1957 and published in the

Official Gazette on 8th July 1957, brought into force the ex-traordinary powers conferred upon it by

Part II of the Offences against the State (Amendment) Act, 1940, „to secure the preservation of public

peace and order―;

24. Whereas, by letter dated 20th July 1957 addressed to the Secretary-General of the Council of

Europe, the Irish Government expressly stated that „the deten -tion of persons under the Act is

considered necessary to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution―;

[…]

28. Whereas, in the general context of Article 15 (art. 15) of the Convention, the natural and

customary meaning of the words „other public emergency threatening the life of the nation― is

sufficiently clear; whereas they refer to an exceptional situation of crisis or emergency which affects

the whole population and constitutes a threat to the organised life of the community of which the State

is composed; whereas, having thus established the natural and customary meaning of this conception,

the Court must determine whether the facts and circumstances which led the Irish Government to

make their Proclamation of 5th July 1957 come within this conception; whereas the Court, after an

exami-nation, find this to be the case; whereas the existence at the time of a „public emergency

threatening the life of the nation―, was reasonably deduced by the Irish Government from a

combination of several factors, namely: in the first place, the existence in the territory of the Republic

of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its

purposes; secondly, the fact that this army was also operating outside the territory of the State, thus

seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady

and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of

1957;

29. Whereas, despite the gravity of the situation, the Government had suc-ceeded, by using means

available under ordinary legislation, in keeping public institutions functioning more or less normally,

but whereas the homicidal am-bush on the night 3rd to 4th July 1957 in the territory of Northern

Ireland near the border had brought to light, just before 12th July - a date, which, for histori-cal

reasons is particularly critical for the preservation of public peace and order - the imminent danger to


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the nation caused by the continuance of unlawful ac-tivities in Northern Ireland by the IRA and

various associated groups, operating from the territory of the Republic of Ireland;

30. Whereas, in conclusion, the Irish Government were justified in declaring that there was a public

emergency in the Republic of Ireland threatening the life of the nation and were hence entitled,

applying the provisions of Article 15, paragraph 1 (art. 15-1), of Convention for the purposes for

which those provi-sions were made, to take measures derogating from their obligations under theConvention;

(b) As to whether the measures taken in derogation from obligations under the Convention were

„strictly required by the exigencies of the situation―.

31. Whereas Article 15, paragraph 1 (art. 15-1), provides that a High Contract-ing Party may derogate

from its obligations under the Convention only „to the extent strictly required by the exigencies of the

situation―; whereas it is there-fore necessary, in the present case, to examine whether the bringing

into force of Part II of the 1940 Act was a measure strictly required by the emergency existing in

1957;

[…]

36. Whereas, however, considering, in the judgment of the Court, that in 1957 the application of theordinary law had proved unable to check the growing danger which threatened the Republic of Ireland;

whereas the ordinary criminal courts, or even the special criminal courts or military courts, could not

suffice to restore peace and order; whereas, in particular, the amassing of the necessary evidence to

convict persons involved in activities of the IRA and its splinter groups was meeting with great

difficulties caused by the military, secret and terrorist character of those groups and the fear they

created among the popula-tion; whereas the fact that these groups operated mainly in Northern Ireland,

their activities in the Republic of Ireland being virtually limited to the prepara-tion of armed raids

across the border was an additional impediment to the ga-thering of sufficient evidence; whereas the

sealing of the border would have had extremely serious repercussions on the population as a whole,

beyond the extent required by the exigencies of the emergency;Whereas it follows from the foregoing that none of the above-mentioned means would have made it

possible to deal with the situation existing in Ireland in 1957; whereas, therefore, the administrative

detention – as instituted under the Act (Amendment) of 1940 - of individuals suspected of intending to

take part in terrorist activities, appeared, despite its gravity, to be a measure required by the

circumstances;

37. Whereas, moreover, the Offences against the State (Amendment) Act of 1940, was subject to a

number of safeguards designed to prevent abuses in the operation of the system of administrative

detention; whereas the application of the Act was thus subject to constant supervision by Parliament,

which not only received precise details of its enforcement at regular intervals but could also at any

time, by a Resolution, annul the Government's Proclamation which had brought the Act into force;

whereas the Offences against the State (Amendment) Act 1940, provided for the establishment of a

„Detention Commission― made up of three members, which the Government did in fact set up, the

members being an officer of the Defence Forces and two judges; whereas any person de-tained under

this Act could refer his case to that Commission whose opinion, if favourable to the release of the

person concerned, was binding upon the Gov-ernment; whereas, moreover, the ordinary courts could

themselves compel the Detention Commission to carry out its functions;

Whereas, in conclusion, immediately after the Proclamation which brought the power of detention into

force, the Government publicly announced that it would release any person detained who gave an

undertaking to respect the Constitution and the Law and not to engage in any illegal activity, and that

the wording of this undertaking was later altered to one which merely required that the person detained

would undertake to observe the law and refrain from activities contrary to the 1940 Act; whereas the

persons arrested were informed immediately after their arrest that they would be released following


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the undertaking in question; whereas in a democratic country such as Ireland the existence of this

guarantee of release given publicly by the Government constituted a legal obligation on the

Government to release all persons who gave the undertaking;

Whereas, therefore, it follows from the foregoing that the detention without trial provided for by the

1940 Act, subject to the above-mentioned safeguards, ap-pears to be a measure strictly required by the

exigencies of the situation within the meaning of Article 15 (art. 15) of the Convention;38. Whereas, in the particular case of G.R. Lawless, there is nothing to show that the powers of

detention conferred upon the Irish Government by the Of-fences against the State (Amendment) Act

1940, were employed against him, either within the meaning of Article 18 (art. 18) of the Convention,

for a pur-pose other than that for which they were granted, or within the meaning of Ar-ticle 15 (art.

15) of the Convention, by virtue of a measure going beyond what was strictly required by the situation

at that time; whereas on the contrary, the Commission, after finding in its Decision of 30th August

1958 on the admissi-bility of the Application that the Applicant had in fact submitted his Application

to it after having exhausted the domestic remedies, observed in its Report that the general conduct of

G.R. Lawless, „his association with persons known to be active members of the IRA, his conviction

for carrying incriminating documents and other circumstances were such as to draw upon theApplicant the gravest suspicion that, whether or not he was any longer a member, he still was con-

cerned with the activities of the IRA at the time of his arrest in July 1957; whe-reas the file also shows

that, at the beginning of G.R. Lawless's detention under Act No. 2 of 1940, the Irish Government

informed him that he would be re-leased if he gave a written undertaking „to respect the Constitution

of Ireland and the Laws― and not to „be a member of or assist any organisation that is an unlawful

organisation under the Offences against the State Act, 1939―; whereas in December 1957 the

Government renewed its offer in a different form, which was accepted by G.R. Lawless, who gave a

verbal undertaking before the De-tention Commission not to „take part in any activities that are illegal

under the Offences against the State Acts 1939 and 1940― and was accordingly imme -diately

released;[…]

As to whether the letter of 20th July 1957 from the Irish Government to the Secretary-General of the

Council of Europe was a sufficient notification for the purposes of Article 15, paragraph 3 (art. 15-3),

of the Convention.

42. Whereas Article 15, paragraph 3 (art. 15-3), of the Convention provides that a Contracting Party

availing itself of the right of derogation under paragraph 1 of the same Article (art. 15-1) shall keep the

Secretary-General of the Council of Europe fully informed of the measures which it has taken and the

reasons therefore and shall also inform him when such measures have ceased to operate;

43. Whereas, in the present case, the Irish Government, on 20th July 1957, sent the Secretary-General

of the Council of Europe a letter informing him - as is stated therein: „in compliance with Article 15

(3) (art. 15-3) of the Convention― - that Part II of the Offences against the State (Amendment) Act,

1940, had been brought into force on 8th July 1957 […] whereas the Irish Government explained in

the said letter that the measure in question was „considered neces-sary to prevent the commission of

offences against public peace and order and to prevent the maintaining of military or armed forces

other than those autho-rised by the Constitution―;

[…]

47. Whereas the Court is called upon in the first instance, to examine whether, in pursuance of

paragraph 3 of Article 15 (art. 15-3) of the Convention, the Sec-retary-General of the Council of

Europe was duly informed both of the meas-ures taken and of the reason therefore; whereas the Court

notes that a copy of the Offences against the State (Amendment) Act, 1940, and a copy of the Proc-

lamation of 5th July, published on 8th July 1957, bringing into force Part II of the aforesaid Act were

attached to the letter of 20th July; that it was explained in the letter of 20th July that the measures had


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been taken in order „to prevent the commission of offences against public peace and order and to

prevent the maintaining of military or armed forces other than those authorised by the Con-stitution―;

that the Irish Government thereby gave the Secretary-General suffi-cient information of the measures

taken and the reasons therefore; that, in the second place, the Irish Government brought this

information to the Secretary-General's attention only twelve days after the entry into force of the

measures derogating from their obligations under the Convention; and that the notifica-tion wastherefore made without delay […]

Whereas the Court accordingly finds that, in the present case, the Irish Govern-ment fulfilled their

obligations as Party to the Convention under Article 15, paragraph 3 (art. 15-3), of the Convention

[…]


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ECtHR 18.01.1978, Ireland v. United Kingdom, Application No. 5310/71

On the „extent strictly required―

206. The Contracting States may make use of their right of derogation only „to the extent strictly

required by the exigencies of the situation―. The Irish Gov-ernment consider the „extent strictly

required― to have been exceeded, whereas the British Government and the Commission assert thecontrary.

The role of the Court

207. The limits on the Court‘s powers of review […] are particularly apparent where Article 15 (art.

15) is concerned.

It falls in the first place to each Contracting State, with its responsibility for „the life of [its] nation―,

to determine whether that life is threatened by a „public emergency― and, if so, how far it is

necessary to go in attempting to overcome the emergency. By reason of their direct and continuous

contact with the press-ing needs of the moment, the national authorities are in principle in a better po-

sition than the international judge to decide both on the presence of such an emergency and on the

nature and scope of derogations necessary to avert it. In this matter Article 15 para. 1 (art. 15-1) leavesthose authorities a wide margin of appreciation.

Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the

Commission, is responsible for ensuring the observance of the States‘ engagements (Article 19) (art.

19), is empower ed to rule on whether the States have gone beyond the „extent strictly required by the

exigen-cies― of the crisis (Lawless judgment of 1 July 1961, Series A no. 3, p. 55, para. 22, and pp.

57-59, paras. 36-38). The domestic margin of appreciation is thus accompanied by a European

supervision.


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ECtHR 26.05.1993, Brannigan and McBride v. United Kingdom, Application No. 14553/89;

14554/89

36. The applicants, Mr Brannigan and Mr McBride, were detained under sec-tion 12 (1) (b) of the

1984 Act in early January 1989 very shortly after the Gov-ernment‘s derogation of 23 December 1988under Article 15 (art. 15) of the Convention […] Their detention lasted for periods of six days,

fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respective-ly […].

They complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention. The

relevant parts of Article 5 (art. 5) are as follows:

„1. Everyone has the right to liberty and security of person. No one shall be de prived of his liberty

save in the following cases and in accordance with a pro-cedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the

competent legal authority on reasonable suspicion of having committed an offence ...;

...3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article

(art. 5-1-c) shall be brought promptly before a judge or oth-er officer authorised by law to exercise

judicial power ...

...

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this

Article (art. 5) shall have an enforceable right to compen-sation.―

37. The Government, noting that both of the applicants were detained for longer periods than the

shortest period found by the Court to be in breach of Article 5 para. 3 (art. 5-3) in the case of Brogan

and Others, conceded that the require-ment of promptness had not been respected in the present cases

(see paragraph 30 above). They further accepted that, in the absence of an enforceable right tocompensation in respect of the breach of Article 5 para. 3 (art. 5-3), Article 5 para. 5 (art. 5-5) had not

been complied with.

Having regard to its judgment in the case of Brogan and Others, the Court finds that Article 5 paras. 3

and 5 (art. 5-3, art. 5-5) have not been respected (loc. cit., pp. 30-35, paras. 55-62 and 66-67).

38. However, the Government further submitted that the failure to observe these requirements of

Article 5 (art. 5) had been met by their derogation of 23 De-cember 1988 under Article 15 (art. 15) of

the Convention. The Court must therefore examine the validity of the Government‘s derogation in the

light of this provision. It recalls at the outset that the question whether any derogation 61


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from the United Kingdom‘s obligations under the Convention might be permiss -ible under Article 15

(art. 15) by reason of the terrorist campaign in Northern Ireland was specifically left open by the Court

in the Brogan and Others case (loc. cit., pp. 27-28, para. 48).

Validity of the United Kingdom‘s derogation under Article 15 (art. 15)

[…]

41. The applicants argued that it would be inconsistent with Article 15 para. 2 (art. 15-2) if, inderogating from safeguards recognised as essential for the pro-tection of non-derogable rights such as

Articles 2 and 3 (art. 2, art. 3), the na-tional authorities were to be afforded a wide margin of

appreciation. This was especially so where the emergency was of a quasi-permanent nature such as

that existing in Northern Ireland. To do so would also be inconsistent with the Bro-gan and Others

judgment where the Court had regarded judicial control as one of the fundamental principles of a

democratic society and had already - they claimed - extended to the Government a margin of

appreciation by taking into account in paragraph 58 (p. 32) the context of terrorism in Northern

Ireland.

42. In their written submissions, Amnesty International maintained that strict scrutiny was required by

the Court when examining derogation from fundamen-tal procedural guarantees which were essentialfor the protection of detainees at all times, but particularly in times of emergency. Liberty, Interights

and the Committee on the Administration of Justice („Liberty and Others―) submitted for their part

that, if States are to be allowed a margin of appreciation at all, it should be narrower the more

permanent the emergency becomes.

43. The Court recalls that it falls to each Contracting State, with its responsibility for „the life of [its]

nation―, to determine whether that life is threatened by a „public emergency― and, if so, how far it is

necessary to go in attempting to overcome the emergency. By reason of their direct and continuous

contact with the pressing needs of the moment, the national authorities are in principle in a better

position than the international judge to decide both on the presence of such an emergency and on the

nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin ofappreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment

of 18 January 1978, Series A no. 25, pp. 78-79, para. 207).

Nevertheless, Contracting Parties do not enjoy an unlimited power of apprecia-tion. It is for the Court

to rule on whether inter alia the States have gone beyond the „extent strictly required by the

exigencies― of the crisis. The domestic mar -gin of appreciation is thus accompanied by a European

supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate

weight to such relevant factors as the nature of the rights affected by the deroga-tion, the

circumstances leading to, and the duration of, the emergency situation.


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ECtHR 19.02.2009 A. and Others v. UK, Application. no. 3455/05

Excerpts

3. The merits

161. The Court must first ascertain whether the applicants' detention was permissible under Article 5 §1(f), because if that subparagraph does provide a defence to the complaints under Article 5 § 1, it willnot be necessary to determine whether or not the derogation was valid (see Ireland v. the UnitedKingdom, judgment of 18 January 1978, § 191, Series A no. 25).

a. Whether the applicants were lawfully detained in accordance with Article 5 § 1(f) of the Convention

162. Article 5 enshrines a fundamental human right, namely the protection of the individual againstarbitrary interference by the State with his or her right to liberty (Aksoy v. Turkey, judgment of 18

December 1996, § 76, Reports 1996-VI). The text of Article 5 makes it clear that the guarantees itcontains apply to “everyone”.

163. Sub- paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds onwhich persons may be deprived of their liberty and no deprivation of liberty will be lawful unless itfalls within one of those grounds (Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR2008). One of the exceptions, contained in subparagraph (f), permits the State to control the liberty ofaliens in an immigration context (idem., § 64). The Government contend that the applicants' detentionwas justified under the second limb of that subparagraph and that they were lawfully detained as persons “against whom action is being taken with a view to deportation or extradition”.

164. Article 5 § 1(f) does not demand that detention be reasonably considered necessary, for exampleto prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the

second limb of Article 5 § 1(f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention

will cease to be permissible under Article 5 § 1(f) (Chahal, cited above, § 113). The deprivation ofliberty must also be “lawful”. Where the “lawfulness” of detention is in issue, including the questionwhether “a procedure prescribed by law” has been followed, the Convention refers essentially tonational law and lays down the obligation to conform to the substantive and procedural rules ofnational law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires inaddition that any deprivation of liberty should be in keeping with the purpose of protecting theindividual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can becompatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of

conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (Saadi v. the United Kingdom, cited above, §67). To avoid being branded as arbitrary, detention under Article 5 § 1(f) must be carried out in goodfaith; it must be closely connected to the ground of detention relied on by the Government; the placeand conditions of detention should be appropriate; and the length of the detention should not exceed

that reasonably required for the purpose pursued (see, mutatis mutandis, Saadi v. the United Kingdom,cited above, § 74).

165. The first, third, and sixth applicants were taken into detention under the 2001 Act on 19December 2001; the seventh applicant was detained on 9 February 2002; the eighth applicant, on 23October 2002; the ninth applicant, on 22 April 2002; the tenth applicant, on 14 January 2003; and theeleventh applicant, on 2 October 2003. None of these applicants was released until 10-11 March 2005.The fifth applicant was detained between 19 December 2001 and 22 April 2004, when he was releasedon bail subject to stringent conditions. The second and fourth applicants were also detained on 19


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December 2001 but the second applicant was released on 22 December 2001, following his decision to

return to Morocco, and the fourth applicant was released on 13 March 2002, following his decision togo to France. The applicants were held throughout in high security conditions at either Belmarsh or

Woodhill Prisons or Broadmoor Hospital. It cannot, therefore, be disputed that they were deprived oftheir liberty within the meaning of Article 5 § 1 (see Engel and Others v. the Netherlands, judgment of8 June 1976, Series A no. 22).

166. The applicants were foreign nationals whom the Government would have deported from theUnited Kingdom had it been possible to find a State to receive them where they would not face a realrisk of being subjected to treatment contrary to Article 3 of the Convention (Saadi v. Italy [GC], no.37201/06, §§ 125 and 127, ECHR 2008). Although the respondent State's obligations under Article 3 prevented the removal of the applicants from the United Kingdom, the Secretary of State nonethelessconsidered it necessary to detain them for security reasons, because he believed that their presence inthe country was a risk to national security and suspected that they were or had been concerned in thecommission, preparation or instigation of acts of international terrorism and were members of,

belonged to or had links with an international terrorist group. Such detention would have beenunlawful under domestic law prior to the passing of Part 4 of the 2001 Act, since the 1984 judgment in

Hardial Singh entailed that the power of detention could not be exercised unless the person subject tothe deportation order could be deported within a reasonable time (see paragraph 87 above). Thus, itwas stated in the derogation notice lodged under Article 15 of the Convention that extended powers

were required to arrest and detain a foreign national “where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic

law powers” (see paragraph 11 above).

167. One of the principal assumptions underlying the derogation notice, the 2001 Act and the decisionto detain the applicants was, therefore, that they could not be removed or deported “for the time being”(see paragraphs 11 and 90 above). There is no evidence that during the period of the applicants'detention there was, except in respect of the second and fourth applicants, any realistic prospect oftheir being expelled without this giving rise to a real risk of ill-treatment contrary to Article 3. Indeed,

the first applicant is stateless and the Government have not produced any evidence to suggest thatthere was another State willing to accept him. It does not appear that the Government entered into

negotiations with Algeria or Jordan, with a view to seeking assurances that the applicants who werenationals of those States would not be ill-treated if returned, until the end of 2003 and no suchassurance was received until August 2005 (see paragraph 86 above). In these circumstances, the Court

does not consider that the respondent Government's policy of keeping the possibility of deporting theapplicants “under active review” was sufficiently certain or determinative to amount to “action ...

being taken with a view to deportation”.

168. The exceptions to this conclusion were the second applicant, who was detained for only threedays prior to his return to Morocco, and the fourth applicant, who left the United Kingdom for Franceon 13 March 2002, having been detained for just under three months (see paragraphs 35 and 41above). The Court considers that during these periods of detention it could reasonably be said thataction was being taken against these applicants with a view to deportation, in that it appears that the

authorities were still at that stage in the course of establishing their nationalities and investigatingwhether their removal to their countries of origin or to other countries would be possible (seeGebremedhin [Gaberamadhien] v. France, no. 25389/05, § 74, 26 April 2007). Accordingly , there has been no violation of Article 5 § 1 of the Convention in respect of the second and fourth applicants.

169. It is true that even the applicants who were detained the longest were not held for as long as theapplicant in Chahal (cited above), wher e the Court found no violation of Article 5 § 1 despite his

imprisonment for over six years. However, in the Chahal case, throughout the entire period of thedetention, proceedings were being actively and diligently pursued, before the domestic authorities and

the Court, in order to determine whether it would be lawful and compatible with Article 3 of the


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Convention to proceed with the applicant's deportation to India. The same cannot be said in the present

case, where the proceedings have, instead, been primarily concerned with the legality of the detention.

170. In the circumstances of the present case it cannot be said that the first, third, fifth, sixth, seventh,eighth, ninth, tenth and eleventh applicants were persons “against whom action [was] being taken witha view to deportation or extradition”. Their detention did not, therefore, fall within the exception to theright to liberty set out in paragraph 5 § 1(f) of the Convention. This is a conclusion which was also,expressly or impliedly, reached by a majority of the members of the House of Lords (see paragraph 17above).

171. It is, instead, clear from the terms of the derogation notice and Part 4 of the 2001 Act that theapplicants were certified and detained because they were suspected of being international terrorists and because it was believed that their presence at liberty in the United Kingdom gave rise to a threat tonational security. The Court does not accept the Government's argument that Article 5 § 1 permits a balance to be struck between the individual's right to liberty and the State's interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court's jurisprudenceunder sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive

list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aimsof Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court,it cannot be made to fit by an appeal to the need to balance the interests of the State against those ofthe detainee.

172. The Court recalls that it has, on a number of occasions, found internment and preventivedetention without charge to be incompatible with the fundamental right to liberty under Article 5 § 1,in the absence of a valid derogation under Article 15 (see Lawless v. Ireland (No. 3), judgment of 1July 1961, §§ 13 and 14, Series A no. 3; Ireland v. the United Kingdom, cited above, §§ 194 -196 and212-213). It must now, therefore, consider whether the United Kingdom's derogation was valid.

b. Whether the United Kingdom validly derogated from its obligations under Article 5 § 1 of the

Convention

i. The Court's approach

173. The Court recalls that it falls to each Contracting State, with its responsibility for “the life of [its]

nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it isnecessary to go in attempting to overcome the emergency. By reason of their direct and continuous

contact with the pressing needs of the moment, the national authorities are in principle better placedthan the international judge to decide both on the presence of such an emergency and on the nature andscope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of

appreciation should be left to the national authorities. Nonetheless, Contracting Parties do not enjoy an

unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the“extent strictly required by the exigencies” of the crisis. The domestic margin of appreciation is thusaccompanied by a European supervision. In exercising this supervision, the Court must giveappropriate weight to such relevant factors as the nature of the rights affected by the derogation andthe circumstances leading to, and the duration of, the emergency situation (Ireland v. the UnitedKingdom, cited above, § 207; Brannigan and McBride v. the United Kingdom, judgment of 26 May

1993, § 43, Series A no. 258; Aksoy, cited above, § 68).

174. The object and purpose underlying the Convention, as set out in Article 1, is that the rights andfreedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the

machinery of protection established by the Convention that the national systems themselves provideredress for breaches of its provisions, with the Court exercising a supervisory role subject to the

principle of subsidiarity (Z. and Others v. the United Kingdom, no. 29392/95, § 103, ECHR 2001-V).Moreover, the domestic courts are part of the “national authorities” to which the Court affords a wide


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margin of appreciation under Article 15. In the unusual circumstances of the present case, where the

highest domestic court has examined the issues relating to the State's derogation and concluded thatthere was a public emergency threatening the life of the nation but that the measures taken in response

were not strictly required by the exigencies of the situation, the Court considers that it would be justified in reaching a contrary conclusion only if satisfied that the national court had misinterpreted ormisapplied Article 15 or the Court's jurisprudence under that Article or reached a conclusion which

was manifestly unreasonable.

ii. Whether there was a “public emergency threatening the life of the nation”

175. The applicants argued that there had been no public emergency threatening the life of the Britishnation, for three main reasons: first, the emergency was neither actual nor imminent; secondly, it wasnot of a temporary nature; and, thirdly, the practice of other States, none of which had derogated fromthe Convention, together with the informed views of other national and international bodies, suggestedthat the existence of a public emergency had not been established.

176. The Court recalls that in Lawless, cited above, § 28, it held that in the context of Article 15 the

natural and customary meaning of the words “other public emergency threatening the life of thenation” was sufficiently clear and that they referred to “an exceptional situation of crisis or emergencywhich affects the whole population and constitutes a threat to the organised life of the community ofwhich the State is composed”. In the Greek Case (1969) 12 YB 1, § 153, the Commission held that, inorder to justify a derogation, the emergency should be actual or imminent; that it should affect thewhole nation to the extent that the continuance of the organised life of the community was threatened;and that the crisis or danger should be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, were plainlyinadequate. In Ireland v United Kingdom, cited above, §§ 205 and 212, the parties were agreed, aswere the Commission and the Court, that the Article 15 test was satisfied, since terrorism had for anumber of years represented “a particularly far -reaching and acute danger for the territorial integrity ofthe United Kingdom, the institutions of the six counties and the lives of the province's inhabitants”.

The Court reached similar conclusions as regards the continuing security situation in Northern Irelandin Brannigan and McBride, cited above, and Marshall v. the United Kingdom (dec.), no. 41571/98, 10

July 2001. In Aksoy, cited above, it accepted that Kurdish separatist violence had given rise to a“public emergency” in Turkey.

177. Before the domestic courts, the Secretary of State adduced evidence to show the existence of athreat of serious terrorist attacks planned against the United Kingdom. Additional closed evidence wasadduced before SIAC. All the national judges accepted that the danger was credible (with theexception of Lord Hoffmann, who did not consider that it was of a nature to constitute “a threat to thelife of the nation”: see paragraph 18 above). Although when the derogation was made no al'Qaedaattack had taken place within the territory of the United Kingdom, the Court does not consider that the

national authorities can be criticised, in the light of the evidence available to them at the time, forfearing that such an attack was “imminent”, in that an atrocity might be committed without warning atany time. The requirement of imminence cannot be interpreted so narrowly as to require a State to waitfor disaster to strike before taking measures to deal with it. Moreover, the danger of a terrorist attackwas, tragically, shown by the bombings and attempted bombings in London in July 2005 to have beenvery real. Since the purpose of Article 15 is to permit States to take derogating measures to protecttheir populations from future risks, the existence of the threat to the life of the nation must be assessed primarily with reference to those facts which were known at the time of the derogation. The Court isnot precluded, however, from having regard to information which comes to light subsequently (see,mutatis mutandis, Vilvarajah and others v. the United Kingdom, judgment of 30 October 1991, §

107(2), Series A no. 215).

178. While the United Nations Human Rights Committee has observed that measures derogating fromthe provisions of the ICCPR must be of “an exceptional and temporary nature” (see paragraph 109


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above), the Court's case-law has never, to date, explicitly incorporated the requirement that the

emergency be temporary, although the question of the proportionality of the response may be linked tothe duration of the emergency. Indeed, the cases cited above, relating to the security situation in

Northern Ireland, demonstrate that it is possible for a “public emergency” within the meaning ofArticle 15 to continue for many years. The Court does not consider that derogating measures put in place in the immediate aftermath of the al'Qaeda attacks in the United States of America, and reviewed

on an annual basis by Parliament, can be said to be invalid on the ground that they were not“temporary”.

179. The applicants' argument that the life of the nation was not threatened is principally founded onthe dissenting opinion of Lord Hoffman, who interpreted the words as requiring a threat to theorganised life of the community which went beyond a threat of serious physical damage and loss oflife. It had, in his view, to threaten “our institutions of gove rnment or our existence as a civilcommunity” (see paragraph 18 above). However, the Court has in previous cases been prepared to takeinto account a much broader range of factors in determining the nature and degree of the actual or

imminent threat to the “nation” and has in the past concluded that emergency situations have existedeven though the institutions of the State did not appear to be imperilled to the extent envisaged by

Lord Hoffman.

180. As previously stated, the national authorities enjoy a wide margin of appreciation under Article15 in assessing whether the life of their nation is threatened by a public emergency. While it is strikingthat the United Kingdom was the only Convention State to have lodged a derogation in response to the

danger from al'Qaeda, although other States were also the subject of threats, the Court accepts that itwas for each Government, as the guardian of their own people's safety, to make their own assessmenton the basis of the facts known to them. Weight must, therefore, attach to the judgment of the UnitedKingdom's executive and Parliament on this question. In addition, significant weight must be accordedto the views of the national courts, who were better placed to assess the evidence relating to theexistence of an emergency.

181. On this first question, the Court accordingly shares the view of the majority of the House ofLords that there was a public emergency threatening the life of the nation.

Iii Whether the measures were strictly required by the exigencies of the situation

182. Article 15 provides that the State may take measures derogating from its obligations under theConvention only “to the extent strictly required by the exigencies of the situation”. As previouslystated, the Court considers that it should in principle follow the judgment of the House of Lords on thequestion of the proportionality of the applicants' detention, unless it can be shown that the nationalcourt misinterpreted the Convention or the Court's case-law or reached a conclusion which was

manifestly unreasonable. It will consider the Government's challenges to the House of Lords'

judgment against this background.

183. The Government contended, first, that the majority of the House of Lords should have afforded amuch wider margin of appreciation to the executive and Parliament to decide whether the applicants'detention was necessary. A similar argument was advanced before the House of Lords, where theAttorney General submitted that the assessment of what was needed to protect the public was a matter

of political rather than judicial judgment (see paragraph 19 above).

184. When the Court comes to consider a derogation under Article 15, it allows the national authoritiesa wide margin of appreciation to decide on the nature and scope of the derogating measures necessary

to avert the emergency. Nonetheless, it is ultimately for the Court to rule whether the measures were“strictly required”. In particular, where a derogating measure encroaches upon a fundamental

Convention right, such as the right to liberty, the Court must be satisfied that it was a genuine responseto the emergency situation, that it was fully justified by the special circumstances of the emergency


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and that adequate safeguards were provided against abuse (see, for example, Brannigan and McBride,

cited above, §§ 48-66; Aksoy, cited above, §§ 71-84; and the principles outlined in paragraph 173above). The doctrine of the margin of appreciation has always been meant as a tool to define relations

between the domestic authorities and the Court. It cannot have the same application to the relations between the organs of State at the domestic level. As the House of Lords held, the question of proportionality is ultimately a judicial decision, particularly in a case such as the present where the

applicants were deprived of their fundamental right to liberty over a long period of time. In any event,having regard to the careful way in which the House of Lords approached the issues, it cannot be said

that inadequate weight was given to the views of the executive or of Parliament.

185. The Government also submitted that the House of Lords erred in examining the legislation in theabstract rather than considering the applicants' concrete cases. However, in the Court's view, theapproach under Article 15 is necessarily focussed on the general situation pertaining in the countryconcerned, in the sense that the court - whether national or international - is required to examine themeasures that have been adopted in derogation of the Convention rights in question and to weigh them

against the nature of the threat to the nation posed by the emergency. Where, as here, the measures arefound to be disproportionate to that threat and to be discriminatory in their effect, there is no need to

go further and examine their application in the concrete case of each applicant.

186. The Government's third ground of challenge to the House of Lords' decision was directed principally at the approach taken towards the comparison between non-national and national suspectedterrorists. The Court, however, considers that the House of Lords was correct in holding that the

impugned powers were not to be seen as immigration measures, where a distinction between nationalsand non-nationals would be legitimate, but instead as concerned with national security. Part 4 of the2001 Act was designed to avert a real and imminent threat of terrorist attack which, on the evidence,was posed by both nationals and non-nationals. The choice by the Government and Parliame

Terrorism and Human Rights Reader Part I (1)

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