Quick answer
In A. and Others v. the United Kingdom (Grand Chamber, 19 February 2009, application no. 3455/05), the European Court of Human Rights held that the indefinite detention of foreign-national terrorism suspects at Belmarsh, under Part 4 of the Anti-terrorism, Crime and Security Act 2001, violated Article 5 § 1 in respect of nine of the eleven applicants — because it discriminated between nationals and non-nationals and was disproportionate. It found no violation of Article 3, and also found breaches of Article 5 § 4 and Article 5 § 5.
Background and facts
In the aftermath of the attacks of 11 September 2001, the United Kingdom purported to derogate from Article 5 under Article 15 of the Convention and enacted Part 4 of the 2001 Act. This allowed the indefinite detention, without trial, of foreign nationals certified as suspected international terrorists who could not be deported — for example because they would face a real risk of ill-treatment in their home country. The eleven applicants were detained on this basis, most at Belmarsh Prison.
Before the case reached Strasbourg, the House of Lords had already held, in a landmark ruling, that the scheme was incompatible with the Convention: it was both disproportionate and discriminatory, because it applied only to foreign nationals even though the threat also came from British nationals.
The complaint
- Article 3 — the conditions and indefinite, open-ended nature of the detention;
- Article 5 § 1 — that the detention was unlawful;
- Article 5 § 4 — that the procedure for reviewing the detention was unfair; and
- Article 5 § 5 — that there was no enforceable right to compensation.
The Court’s reasoning
On Article 3, the Court held that, although the uncertainty of indefinite detention caused the applicants considerable anxiety, it did not reach the high threshold of severity required for a violation.
On Article 5 § 1, the Court agreed with the House of Lords. Detention “with a view to deportation” under Article 5 § 1 (f) could not justify the scheme, because deportation was not in fact a realistic prospect for these detainees. More fundamentally, the measures discriminated unjustifiably between nationals and non-nationals: if, as the Government maintained, there was a public emergency threatening the life of the nation, that threat emanated from British nationals as well as foreigners, yet only foreigners could be detained. The response was therefore disproportionate, and the Court found a violation of Article 5 § 1 in respect of nine of the eleven applicants (the two who chose to leave the United Kingdom were not victims of a violation).
On Article 5 § 4, the Court held that where the case against a detainee lay wholly or mainly in closed material that neither he nor his chosen lawyer could see, and the special-advocate system could not compensate, the detainee had not been able effectively to challenge the allegations — a breach of the procedural guarantee. It also found a breach of Article 5 § 5 because the applicants had no enforceable right to compensation for these breaches.
The judgment
- unanimously, no violation of Article 3 (alone or with Article 13);
- a violation of Article 5 § 1 in respect of nine of the eleven applicants (and no violation for the other two);
- violations of Article 5 § 4 (in respect of several applicants) and of Article 5 § 5.
Why this case matters
- Counter-terrorism must respect liberty and equality. The State cannot detain indefinitely on grounds that single out non-nationals when the threat is not confined to them.
- Article 5 grounds are exhaustive and must be genuine. Detention “pending deportation” is lawful only where removal is a real prospect pursued with due diligence.
- Closed-material procedures have limits. A detainee must be given sufficient information about the case against him to give effective instructions to the special advocate — a principle central to later national-security litigation.
What this means for applicants
- Detention must fit a genuine Article 5 ground and be proportionate and non-discriminatory.
- Even in an emergency, review must be fair — you must be able to answer the essence of the case against you.
- Discrimination in security measures can itself render them unlawful.
This page summarises a leading judgment and is not legal advice on any individual case.
Frequently Asked Questions
What did A. and Others v. UK decide?
The Grand Chamber held that the indefinite detention of foreign-national terrorism suspects at Belmarsh violated Article 5 § 1 for nine of the eleven applicants, because it was disproportionate and discriminated between nationals and non-nationals. It found no violation of Article 3, and breaches of Article 5 § 4 and § 5.
Why was the detention scheme discriminatory?
Because it allowed only foreign nationals to be detained, even though the Government’s own case was that the terrorist threat also came from British nationals. Singling out non-nationals was not a proportionate response.
What did the case say about secret evidence?
The Court held that where the case against a detainee rested essentially on closed material he could not see, and the special-advocate system could not make up for this, his right to a fair review under Article 5 § 4 was breached.
Did the applicants suffer a breach of Article 3?
No. The Court found that, although indefinite detention caused real anxiety, it did not reach the severity threshold required for a violation of Article 3.
Convention Articles engaged
Cases against this state
Related ECHR cases
- Del Río Prada v. Spain
- Kudła v. Poland
- Navalnyy v. Russia
- Winterwerp v. the Netherlands
- Guzzardi v. Italy
- Aksoy v. Turkey
Facing a similar case?
Our lawyers represent individuals before the European Court of Human Rights. Speak to an ECHR lawyer, learn how to apply to the ECHR, or check the admissibility criteria.