AFFAIRE A. ET AUTRES CONTRE LE ROYAUME-UNI

Rezoluția CM/ResDH(2013)114 A și alții împotriva Regatului Unit executarea hotărârii Curții Europene a Drepturilor Omului (Recherche n 3455/05, Hotărârea din 19 februarie 2009, Marea Cameră) (adoptată de Comitetul de Miniștri la 6 iunie 2013 în cadrul celei de-a 1172-a ședințe a Delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârea definitivă care a fost transmisă de Curte Comitetului în cauza de mai sus și încălcările constatate reamintind obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum ; și măsuri generale de prevenire a unor încălcări similare ; invitând guvernul statului pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligațiilor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . După examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârii judecătorești, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2013) 413 [1] și având în vedere faptul că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1), DECLAMENTUL pe care l-a îndeplinit în temeiul articolului 46 alineatul (2) din Convenție în această cauză și DECIDE d . . Execution of Judgments of the European Court of Human Rights Action Report A and others v the United Kingdom [2009] EHR 301 (aplicația nr. 3455/05) Updated information submitted by the United Kingdom Government on 29 June 2012 and 28 March 2013 Case summary Factors and viols found Parte 4 of the Anti-terorism, Crime and Security Act 2001 (the 2001 Act) allowed the detention pandantion deportation of foreign nationals even if removal was not currently if the Secretary of State reasonably believed that the person A number of individuals subjects to the powers appealed to the European Court of Human Rights. The Court held unanimously that there had been: no violation of Article 3 taken alone or in conjunction with Article 13 of the ECHR in respect of all the aplicants, except for one aplicant whose complaints under these articole were declarad inadmisibils; a încălcarea articolului 5(1) in respect of all but two of the applicants, since it could not be said that they were detained with a view to deportation and since, as the House of Lords had found, the derogating measures which permitted their nedefinite detention on suspect of terrem discriminated unjustifiably betweens nationales and non-nationals; a încălcare a articolului 5(4) în conformitate cu art. 5(5) din Regulamentul (CE) nr. 1107/2009, în conformitate cu art. 5 alineatul (5) din Regulamentul (CE) nr. 1107/2009, în conformitate cu art. 5 alineatul (1) din Regulamentul (CE) nr. 1107/2009. The Court awards under Articol 41 (justiție) which were substantially lower than those which it had made in past cases of unlawful detention, in view of thefact that the detention scheme was mottod in the fass of a public emergency and as an attempt to reconcile the need to protect the United Kingdom public against terorism with the obligation not to send the aplicants back to countries where they faid a real risk of il-treatment. Individual Measures Satisfacție echitabilă The just satisfaction award was paid in May 2009; evidence has been previously provided. The just satisfaction paid to the eighth aplicant was paid into a bank account that is subject to financial sanctions under the Al-Qaida and taliban (United Nations Measures Order) 2006. However, the applicant can be authorised access to the funds in his bank account through a special licensing scheme operated by HM Treasury. Details of current financial sanctions and the licensing scheme are available online at: http://www.hm-treasury.gov.uk/fin_sanctions_index.htm Decizii făcute de HM Treasury on accessing funds which are subject to the licensing scheme can be challenged in the scurts, through judicial review procesedings under domestic law [2] The operation of the licensing regime reflects in international and European law. The Treasury reports to Parliament quarterly on the operation of the asset freezyscheme, inclusivding on licensing activity. Other individual Measures Part 4 of the 2001 Act was repealed in 2005. The aplicants are no long detained under these powers. No further individual measure appears to be necessary. General Measures General Measures Derogation under Article 15 of the European Convention: The United Kingdom authorities withdrew the prospect of derogation on 16 March 2005. Violation of Article 5§1: The detention regime under Part 4 of the 2001 Act was repealed and replanced with a regime of control orders under the Prevention of Terorism Act 2005 (the 2005 Act), which came into force in March 2005. The 2005 Act was was itself repealed on 15 decembrie 2011 by the Terorism Prevention and Investigation Measures (TPIM) Act 2011 (the 2011 Act), which replanced control orders with TPIM prospects. The 2005 Act can found at http://www.legislation.gov.uk/ukpga//2/contents and the 2011 Act at http://www.legislation.gov.uk/ukpga/2011/23/Contents The TPIM regime, like the control order regime before it, operates regardless of naționality. The TPIM powers are subject to renewal every five years by Parliament. No further general measures appear necessary in respect of this încălcarea. Încălcarea articolului 5 alineatul (4): The Special Imigration Appeals Commission (SIAC) was set up by the Special Appeals Commission Act 1997. Altough Part 4 of the 2001 Act has been repealed, SIAC continues to hear appeals raported to anumite imigration as defined in the Nationality, Imigration and Asylum Act 2002 or anumite deciziis to deprive individuals of their British citizenship. The TPIM regime, which raports to personably believed to be involved in terrem-related activity, also involves the use of , a control order case, the Law Lords followed the Grand Chamber The question of how much information to disclose is decided in the context of litigation before the domestic scurts, following the principles laid down in AF (No. 3) . See, for example, Secretary of State for the Home Department v AS [2009] EWHC 2564 (Admin); Secretary of State for the Home Department v CE [2011] EWHC 3159 (Admin); AH v Secretary of State for the Home Department [2011] EWCA Civ 787; and AN, AE & AF v Secretary of State for the Home Department [2010] EWCA Civ 869 . The UK Această casetă law, which is legally binding on the Secretary of State, ghids her approach in conducting disclozion excelises. Within the UK there also avenues by which any privices about the use of closed material procesures can be raised in public, inclusivding to the Independent Reviewer of Terorism Legislation and to Parliamentary Select Committees such as the Home Affairs Select Committee and the Joint Committee on Human Rights. Consequently, the UK Authorities ague is that no further general measures are necessary in respect of this violation. Violation of Article 5§5: The legal regime which led to this disemination (Partea 4 of the 2001 Act) is no longer in force. No further general measures appear necessary in respect of this încălcarea. Publication and disemination The judgment was reported in The Times Law Reports on 20/02/2009 and the All England Law Reports at [2009] All ER (D) (203). It was also widely reported on in the British media. It is available via the British and Irish Legal Information The Government considers that all necessary measures have been taken and the case should be closed. [1] Numai în limba engleză. [2] Lord Alton of Liverpool and others v Secretary of State for the Home Department [2008] EWCA Civ 443, para 43.

Résolution CM/ResDH(2013)114

A et autres contre Royaume-Uni

Exécution de l’arrêt de la Cour européenne des droits de l’homme

(Requête n

o

3455/05, arrêt du 19 février 2009, Grande Chambre)

(adoptée par le Comité des Ministres le 6 juin 2013,

lors de la 1172e réunion des Délégués des Ministres)

Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «

la Convention

» et «

la Cour

»),

Vu l’arrêt définitif qui a été transmis par la Cour au Comité dans l’affaire ci-dessus et les violations constatées

;

Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe

1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire

:

-

de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par

restitutio in integrum

; et

-

de mesures générales permettant de prévenir des violations semblables ;

Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée,

Ayant examiné le bilan d’action fourni par le gouvernement indiquant les mesures adoptées afin d’exécuter l’arrêt y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document

DH-DD(2013)413

)

[1]

;

S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,

DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et

DECIDE d’en clore l’examen.

Execution of Judgments of the European Court of Human Rights

Action Report

A and others v the United Kingdom [2009] ECHR 301 (application No. 3455/05)

Updated information submitted by the United Kingdom Government

on 29 June 2012 and 28 March 2013

Case summary

Facts and violations found

-

Part 4 of the Anti-terrorism, Crime and Security Act 2001 (the 2001 Act) allowed the detention pending deportation of foreign nationals even if removal was not currently possible if the Secretary of State reasonably believed that the person’s presence in the UK was a risk to national security and reasonably suspected that the person was involved with international terrorism linked with Al Qa’ida. A number of individuals subject to the powers appealed to the European Court of Human Rights.

-

The Court held unanimously that there had been:

no violation of Article 3 taken alone or in conjunction with Article 13 of the ECHR in respect of all the applicants, except for one applicant whose complaints under these articles were declared inadmissible;

a violation of Article 5(1) in respect of all but two of the applicants, since it could not be said that they were detained with a view to deportation and since, as the House of Lords had found, the derogating measures which permitted their indefinite detention on suspicion of terrorism discriminated unjustifiably between nationals and non-nationals;

a violation of Article 5(4) in respect of four of the applicants, because they had not been able effectively to challenge the allegations against them; and

a violation of Article 5(5) in respect of all but two of the applicants, on account of the lack of an enforceable right to compensation for the above violations.

-

The Court made awards under Article 41 (just satisfaction) which were substantially lower than those which it had made in past cases of unlawful detention, in view of the fact that the detention scheme was devised in the face of a public emergency and as an attempt to reconcile the need to protect the United Kingdom public against terrorism with the obligation not to send the applicants back to countries where they faced a real risk of ill-treatment.

Individual Measures

Just satisfaction

:

-

The just satisfaction award was paid in May 2009; evidence has been previously provided.

-

The just satisfaction paid to the eighth applicant was paid into a bank account that is subject to financial sanctions under the Al-Qaida and Taliban (United Nations Measures Order) 2006. However, the applicant can be authorised access to the funds in his bank account through a special licensing scheme operated by HM Treasury. Details of current financial sanctions and the licensing scheme are available online at :

http://www.hm-treasury.gov.uk/fin_sanctions_index.htm

-

Decisions made by HM Treasury on accessing funds which are subject to the licensing scheme can be challenged in the courts, through judicial review proceedings under domestic law

[2]

.

-

The operation of the licensing regime reflects developments in international and European law. The Treasury reports to Parliament quarterly on the operation of the asset freezing scheme, including on licensing activity.

Other individual measures

:

-

Part 4 of the 2001 Act was repealed in 2005. The applicants are no longer detained under these powers.

-

No further individual measure appears to be necessary.

General Measures

General measures

:

-

Derogation under Article 15 of the European Convention:

The United Kingdom authorities withdrew the notice of derogation on 16 March 2005.

-

Violation of Article 5§1:

The detention regime under Part 4 of the 2001 Act was repealed and replaced with a regime of control orders under the Prevention of Terrorism Act 2005 (the 2005 Act), which came into force in March 2005. The 2005 Act was itself repealed on 15 December 2011 by the Terrorism Prevention and Investigation Measures (TPIM) Act 2011 (the 2011 Act), which replaced control orders with TPIM notices. The 2005 Act can be found at

http://www.legislation.gov.uk/ukpga/2005/2/contents

and the 2011 Act at

http://www.legislation.gov.uk/ukpga/2011/23/contents

-

The TPIM regime, like the control order regime before it, operates regardless of nationality. The TPIM powers are subject to renewal every five years by Parliament.

-

No further general measures appear necessary in respect of this violation.

-

Violation of Article 5§4:

The Special Immigration Appeals Commission (SIAC) was set up by the Special Appeals Commission Act 1997. Although Part 4 of the 2001 Act has been repealed, SIAC continues to hear appeals related to certain immigration decisions as defined in the Nationality, Immigration and Asylum Act 2002 or certain decisions to deprive individuals of their British citizenship.

-

The TPIM regime, which relates to persons reasonably believed to be involved in terrorism-related activity, also involves the use of “closed material” and the presence of “special advocates”. The court procedures under the 2011 Act were modeled on the SIAC procedures.

-

In

Secretary of State for the Home Department v AF & Others [2009] UKHL 28 (“AF (No. 3)”)

, a control order case, the Law Lords followed the Grand Chamber’s decision in

A & Others

, finding that “the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation those allegations. Provided that this requirement is satisfied there can be a fair trial...” (§59).

-

The question of how much information to disclose is decided in the context of litigation before the domestic courts, following the principles laid down in

AF (No. 3)

. See, for example,

Secretary of State for the Home Department v AS [2009] EWHC 2564 (Admin);

Secretary of State for the Home Department v CE [2011] EWHC 3159 (Admin);

AH v

Secretary of State for the Home Department [2011] EWCA Civ 787;

and

AN, AE & AF v Secretary of State for the Home Department [2010] EWCA Civ 869

. The UK’s domestic courts are thus applying the judgment in

A and others v the United Kingdom

in other proceedings as they consider necessary.

-

This case law, which is legally binding on the Secretary of State, guides her approach in conducting disclosure exercises.

-

Within the UK there are also avenues by which any concerns about the use of closed material procedures can be raised in public, including to the Independent Reviewer of Terrorism Legislation and to Parliamentary Select Committees such as the Home Affairs Select Committee and the Joint Committee on Human Rights.

-

Consequently, the UK Authorities’ assessment is that no further general measures are necessary in respect of this violation.

-

Violation of Article 5§5:

The legal regime which led to this violation (Part 4 of the 2001 Act) is no longer in force.

-

No further general measures appear necessary in respect of this violation.

Publication and dissemination

:

-

The judgment was reported in The Times Law Reports on 20/02/2009 and the All England Law Reports at [2009] All ER (D) (203). It was also widely reported on in the British media. It is available via the British and Irish Legal Information Institute’s web site by searching case law for [2009] ECHR 301.

Conclusion

-

The Government considers that all necessary measures have been taken and the case should be closed.

[1]

En anglais uniquement.

[2]

Lord Alton of Liverpool and others v Secretary of State for the Home Department

[2008] EWCA Civ 443, para 43.