Hassan v.

United Kingdom, Judgment, ECtHR (2014)

 Merits of the case:

o Article 5 of the European Convention on Human Rights (ECHR) - Right to
liberty and security
o 1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save (except) in the following cases and in accordance
with a procedure prescribed by law: ..
 conviction by a competent court;
 secure the fulfilment of any obligation prescribed by law;
 on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence
or fleeing after having done so;
 purpose of educational supervision or his lawful detention for the
purpose of bringing him before the competent legal authority;
 for the prevention of the spreading of infectious diseases…;
 to prevent his effecting an unauthorised entry into the country…
o Article 15
 1. In time of war or other public emergency threatening the life of the
nation any High Contracting Party may take measures derogating from
its obligations under this Convention..
 And if you do so 3. Any High Contracting Party availing itself of this
right of derogation shall keep the Secretary General of the Council of
Europe fully informed of the measures …
 Inform and say why you’re doing it and when will you end the
derogation
 In the UK case –
o The British did not file a derogation under article 15 that there is a detention
centre and the UK will be detaining people who are prisoners of war and
security threat and therefore article 5 will not be comply with the UK.
 If UK did not want to apply with article 5 – it should have derogated why:
o Why is there article 15 then if states will not officially derogate in situation of
war or state of emergency – this is clearly an article for derogation in times of
armed conflict.
 So if the UK wanted to apply the Geneva convention cause it was in an
armed conflict it sought to derogate from article 5 by following the
steps in article 15.
 The West bank wall also mentions derogation – it is a way to resolve
where IHL and IHRL might apply to the same situation (resolve the
conflict by removing IHRL from the equation)
o UK said that – there is no need to derogate from article 15 because:
 The lex specialis conflict resolution rule that is available
 It tell us that the more specific law in relation with the fact
pattern is the one that governs and because IHL is the most
relevant to this situation  lex specialis tells us that only IHL
applies and IHRL doesn’t
 However, harmonization rule – under article 31(3) of the Vienna
convention tell us that we have to interpret treaties in good faith an
assume that states take on obligations that are not contradictory – so
 when you have two treaties try to interpreted them in a way that could
be harmonized – it will resolve the conflict between article 5 of the
ECHR and the Geneva convention
 Therefore, the UK said they did not need to derogate
 Last comment is that actually states do not derogate under article 15
whenever they go out their state’s territory
 They only use article 15 if there is an emergency or armed
conflict on their territory
 What did the court say about derogation and if the UK needs to derogate?
o The truth is if you actually derogate you are actually illustrating and exempted
yourself from article 5 – so it is actually beneficial – so you can create safety,
and removing any doubt by derogating.
o The court say that you do not have to derogate under article 15 if you do not
want it to apply because we have looked cause we have looked around and did
not find any state derogating from article 15 when engaged in an international
armed conflict abroad.
 They reason why they could rely on this is because the Vienna
convention of the law on treaties has a rule of interpretation under
article 31 (3)(b) – any subsequent practice in the application of the
treaty which establishes the agreement of the parties regarding its
interpretation;
 The judges concluded that states through their practice
consented to that article 15 does not need to be used whenever
they’re aboard or engage in international conflict.
 Because there is no derogation that leaves us with having
article 5, in other words, article 5 does apply – the UK doesn’t
have to derogate which leave article 5 in force.
 The conflict between article 5 and Geneva convention has to be
resolved using interpretation – the options are lex specialist and
harmonization
 State can detain somebody if any of the 6 list applies under article 5 –
the court used the list under article 5 and harmonized it with the
Geneva convention
 The Geneva convention allows detention if someone is a
(maybe) a security risk and is a prisoner of war –
 So, what the court did is that they used article 5(1)(c) on
‘reasonable suspicion’ – and said within it they can read
through it and apply the Geneva convention  it was the
closest thing of how the Geneva convention operates.