UK Wins Allies in Challenge To Torture Ruling
· Issue of human rights and national security at stake
Clare Dyer, legal editor, 18/10/2005, The Guardian
The British government has persuaded four other European countries to join it in challenging a 1996 ruling from the European court of human rights in Strasbourg that stops it sending foreign terrorist suspects back to countries such as Algeria where they could face torture.
Along with Britain, the governments of Italy, Lithuania, Portugal and Slovakia have been given permission to intervene as interested parties in a case already lodged against the Netherlands by Mohammed Ramzy, a 22-year-old Algerian suspected of involvement in terrorism who is challenging deportation.
Ministers hope to persuade the Strasbourg court to reconsider its judgment in the 1996 case of Karamjit Singh Chahal, a Sikh militant who successfully argued that he should not be sent back to India because he would face a real risk of inhuman treatment by the authorities there.
The Strasbourg judges ruled that sending him back would breach article three of the European convention on human rights, the prohibition on torture or inhuman or degrading treatment. A majority of the judges ruled that in deciding whether a deportee should be returned, the right of the individual not to be tortured was absolute and could not be balanced against the national security interests of the state. The government fears British judges will feel obliged to follow the Chahal judgment when asked to rule on the deportation of terrorist suspects, despite country-to-country "no-torture" deals they hope to agree with Algeria and other countries. Ministers believe their best chance of removing the roadblock is to persuade the Strasbourg court that the minority judgment in Chahal, which would have allowed the balancing exercise, was right. The Ramzy case has been given priority and the court could deliver a ruling by the end of next year.
The issue of torture was also at the heart of a separate case which started yesterday before Britain's highest court, the House of Lords, involving some of the terrorist suspects the government wants to deport. Lawyers for eight of 10 men - known as the Belmarsh detainees - who were originally held without charge under the Anti-Terrorism Crime and Security Act 2001, asked a panel of seven law lords to rule that any evidence obtained by foreign states using torture cannot be used in courts in the UK.
Ben Emmerson QC, for the men, is challenging a court of appeal ruling last year by a 2-1 majority that if evidence were obtained under torture by agents of another country with no involvement by the UK, it was usable and there was no obligation to inquire about its origins.
Mr Emmerson told the judges: "This case raises in acute form the dilemma of any democracy when the judiciary is called upon to reconcile the protection of national security and the protection of human rights."
He said Britain was now engaged in exchanges of information with states with a history of practising torture.
The three-day hearing continues today.
The appeal to the Lords is by eight of 10 men originally detained without charge after the former home secretary David Blunkett certified them as terrorist suspects under the Anti-Terrorism, Crime and Security Act 2001. The men, unnamed except for the Jordanian-Palestinian cleric Abu Qatada and Jordanian Mahmoud Abu Rideh, were put under control orders by the home secretary, Charles Clarke, after their detention under the act was ruled unlawful by the lords in December. Since August some have been detained for deportation under immigration law after Mr Clarke decided their presence was "not conducive to the public good".