The European Court of Human Rights (ECtHR) has ruled that it is lawful for States to hold secret hearings to determine whether detainees at the centre of anti-terror investigations may be held without charge.
The case concerned the detention of three Pakistani students by UK authorities for 13 days before ultimately being released without charge. During the detention period the applicants were brought before a court twice but claimed their rights under Articles 4 and 5 of the European Convention on Human Rights (ECHR) were breached, as evidence in favour of their continued detention had been withheld from them and one hearing was held for a short period in closed session at which they were not present. The applicants alleged further breaches of the ECHR, claiming the scope of the search warrant and their execution violated their right to respect for private and family life under Article 8.
In its decision, the Court emphasised that terrorism fell into a special category and that the threat of an imminent terrorist attack justified restrictions imposed on applicants’ rights under Articles 4 and 5. These articles did not preclude the use of closed court hearings. It was noted that the applicants and their legal teams had been given reasons for the withheld information and also pointed to the refusal of the applicants to request the judge to appoint a special advocate to ensure procedural fairness. In taking account of these factors, the Court held that there had been no violation of Articles 4 and 5.
With regard to claims concerning rights under Article 8, the Court accepted that the search warrant granted was quite broad but held that this was justified given the nature and urgency of the situation. In cases concerning terrorism charges, the authorities must be afforded some flexibility in their assessments of items found in searches. The Court also noted that the applicants did have the option of lodging a judicial review action or seeking damages in respect of items seized in the search. Thus the ECtHR held that there had been no violation of the applicants’ rights to lawful detention or their rights affected by the manner in which the initial search was conducted.
One judge, Faris Vehabovic, dissented and took issue with the exclusion of the applicants and their legal representatives from hearings concerning their detention.
Click here to read the full ECtHR judgment.