By Tobias Thienel

The European Court of Human Rights has today delivered its 10,000th judgment. That is quite some achievement. Many of those judgments have become known as landmark cases, and all will have been important to the persons bringing them. Some have even been of intense political interest, in the respondent State or even throughout Europe.

Europe itself has, of course, grown rather bigger (as far as the Court is concerned) since 1961, when the Court delivered its first judgment. That fact has presented the Court with the obvious problem of an increased workload, and today’s press release shows how it has managed to move with the times. It is remarkable to note that, about ten years ago when the 11th Additional Protocol was adopted to streamline the Court’s proceedings (not least by abolishing the Commission), the Court had delivered no more than 837 judgments. On average, that works out as less than 23 judgments per year from 1961 to 1998, and a comparatively staggering 916 judgments a year since.

Obviously, the Court still has a huge job on its hands, with many thousands of applications pending before it, many of them against the new member States in Eastern Europe, particularly against Russia. How fitting, then, that its 10,000th judgment was in a case against Russia: Takhayeva and Others v Russia. How fitting, also, that it was a case from Chechnya, a region of particular concern to the Court.

By Tobias Thienel

I reported recently that the English High Court had found that one of the inmates and likely future indictees at Guantanamo Bay had a right to be given all information that the UK Foreign Office and MI6 had on his alleged ill-treatment by US officials. The Court held at the time that the claimant had such a general entitlement, but that the Foreign Secretary remained free to serve a certificate of Public Interest Immunity removing the claimant’s right, on the grounds that disclosure would damage the national security of the United Kingdom.

The Foreign Secretary served such a certificate, but the High Court held in a further judgment – of 29 August, published today – that he had failed to take into account all relevant considerations, as was his duty. In particular, he failed to have due regard to the severity of the claimant’s allegation, namely that he was subjected to torture and inhuman and degrading treatment. The High Court therefore gave the Foreign Secretary until Friday, 5 September (tomorrow), to revise his certificate, after which the Court will decide whether to accept that there should be no disclosure: R (Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2008] EWHC 2100.

Unsurprisingly, it was and will remain the Foreign Secretary’s position that disclosure would endanger the – important – US-UK intelligence sharing relationship, thus raising an issue of British national security. I will have more to say on that when the final decision of the Court comes out. Suffice it to note now that senior figures in the US State Department have very forcefully made that point, after the High Court’s original judgment came out. Looks like that created a bit of a stir in DC, then.

[The statements, by John B. Bellinger III., Legal Adviser to the Department of State, and Stephen Mathias, his Assistant, are set out in the decision reported today.]

Even more remarkably, the new decision shows – and notes expressly – that there has been a change of policy in the US. The information at issue will now, with some redactions, be disclosed first to the Convening Authority of the Military Commissions, and later to the claimant’s military defence counsel. His civilian counsel will be allowed access to the information if and when the Military Commission so decides. That is, as their Lordships’ judgment notes, a welcome change. Whether it is enough remains to be seen. Watch this space.

By Tobias Thienel

The United States policies with regard to the trials at Guantanamo Bay, and the war on terror more generally, have taken another hit today, perhaps from an unexpected quarter. The English High Court (Thomas LJ and Lloyd Jones J) has decided in R (Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2008] EWHC 2048 (Admin) that the British Foreign Secretary is under a general obligation to release to the claimant, a Guantanamo inmate, such information as the Foreign Office or the Secret Intelligence Service (a/k/a MI6) may hold about the incommunicado detention and ill-treatment (or rather, torture) of the claimant at the hands of US agents. The claimant, Binyam Mohamed, will use such material to challenge the admissibility of evidence to be adduced against him at trial before the Military Commission, and before that in seeking to persuade the Convening Authority of the Military Commissions from bringing any charges against him in the first place.

In so doing, the High Court not only made a few less than flattering comments about the US authorities running the proceedings at Guantanamo Bay, but also had a few interesting things to say about some rather hot issues of international law, on which the claimant had relied as establishing his right to see the British information about his apparent ordeal. Continue reading →