ECHR judgment of February 28, 2019 in the case of “Beghal v. The United Kingdom” (complaint No. 4755/16).
In 2016, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated to the United Kingdom.
In the case, the complaint was successfully examined by the complainant, whose husband was detained on charges of terrorism, to arbitrary interference by police, migration authorities and authorized customs officers with her right to respect for private life. The case has violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant, a French national, resided in the United Kingdom. Her husband, a French citizen, was detained in France on charges of terrorism. After traveling to her husband, the applicant was stopped at the East Midlands airport and questioned in accordance with Appendix No. 7 to the Terrorism Act of 2000 (hereinafter - Appendix No. 7). The applicant and her baggage were searched. The applicant refused to answer most of her questions. Subsequently, the applicant was charged, inter alia, with deliberate failure to fulfill her duty in accordance with Appendix No. 7.
Appendix N 7 authorized the police, migration authorities and authorized customs officers to stop, interrogate, and search passengers at airports and international railway terminals. Interrogations were to be conducted to determine whether the relevant persons had signs that they could be associated with (or instruct such actions) with the commission, preparation or incitement to acts of terrorism. These actions did not require any prior authorization, and the right to stop passengers and interrogate could be exercised without suspicion of involvement of the interrogated in terrorist activities.
QUESTIONS OF LAW
Regarding compliance with article 8 of the Convention. The main issue in the present case was whether the guarantees provided by the laws of the United Kingdom could sufficiently limit the powers provided for in Appendix No. 7 to provide the applicant with adequate protection against arbitrary interference with her right to respect for private life.
(a) Territorial and time limits of authority. The powers provided for by Appendix N 7 were extensive in nature, applied continuously at all ports and at border control posts. However, this fact alone did not contradict the principle of legality. Ports and border control points inevitably represented important key points for identifying and preventing terrorist movements and / or suppressing terrorist attacks. Indeed, all states have introduced migration and customs control systems at their ports and at their state borders, and although this control was inherently different from the powers provided for in Appendix No. 7, nevertheless, any person crossing the interstate border could expect that he or it will become an object of verification of a certain level.
(b) The margin of appreciation granted to the authorities in deciding how and at what time should they exercise their authority. The relevant employees had extremely wide margins of appreciation, since the concept of “terrorism” was broadly worded, and the powers provided for in Appendix No. 7 could be exercised regardless of whether the said employees had objective or subjective grounds for suspicion. The requirement of reasonable suspicion was an important issue in assessing the legitimacy of the authority to stop and interrogate or search a person, but nothing in the case file suggested that the existence of a reasonable assumption was necessary in itself in order to avoid arbitrariness in the exercise of authority. Rather, this assessment should have been carried out taking into account the functioning of the scheme as a whole, and the absence of a reasonable suspicion requirement did not in itself render the exercise of authority in the applicant's case illegal.
In the present case, there was clear evidence that the powers provided for in Appendix No. 7 were of real value in protecting national security. If a “reasonable suspicion” were required, the terrorists could have avoided the threat of applying Appendix N 7 to them, using people who had not previously attracted the attention of the police, and the mere fact of stopping the person could make them suspicious of surveillance.
It was important to make a clear distinction between the two powers provided for in Appendix N 7: the right to interrogate and search people and the right to detain people. Since the applicant was not formally detained, the powers of the Court were limited to considering the lawfulness of the rights to interrogation and search. Of significant importance was the fact that the authority provided for in Appendix N 7, in particular to question and search, was a preliminary authorization to carry out an inspection, which was expressly granted in order to help port and border guard officers carry out counter-terrorism checks against any person entering or leaving the country from her. Although there was no requirement for “reasonable suspicion,” nevertheless, guidance was required for these employees. The decision to apply the powers provided for in Appendix No. 7 should have been based on the threat posed by various active terrorist groups, as well as on a number of other considerations, such as, for example, known or suspected sources of terrorism and possible current, emerging or future terrorist activities.
(c) The possibility of any restriction of interference arising from the exercise of the powers under discussion. At the time of the applicant's interrogation, Appendix No. 7 provided that the detained person should have been released no later than nine hours after the interrogation began. At the beginning of the interrogation, the person conducting the procedure must explain to the interrogated person, either orally or in writing, that the interrogation is carried out in accordance with Appendix No. 7 and that he has the right to detain the detained person if he or she refuses to cooperate and insists on leaving . The interrogation protocol should have been kept at the port if the interrogation lasted less than an hour, and centrally if the interrogation lasted more than an hour. However, despite the fact that the interrogated were forced to answer the questions posed, neither the Law on Terrorism nor the Code of Rules in force at the time in question contained any rules that the interrogated (but not detained) person should have been provided with the presence of a lawyer. Consequently, the person could be interrogated for nine hours without any reasonable suspicion, without formalizing detention and without access to a lawyer.
(d) Possibility of judicial review of cases of exercise of these powers. Although it was possible to appeal to a court in cases of exercising the powers provided for in Appendix No. 7, from the practice of the courts of the United Kingdom it followed that the interrogating officer had no obligation to demonstrate “reasonable suspicion” made it difficult for the interrogated to appeal to the court the illegality of the decision to exercise the authority in question.
(e) Independent monitoring of the exercise of the powers in question. Independent control over the application of the powers in question was carried out by the Independent Controller of the legislation on terrorism. The significance of his role lay in complete independence from the authorities, together with access based on an extremely high degree of access to classified or important information related to state security, as well as to employees who own such information. Nevertheless, the inspector's checks were ad hoc in nature, and as far as he could verify the sample of interrogation protocols, he was not in a position to assess the legitimacy of the purpose of stopping the passenger for interrogation. Moreover, although the controller’s reports were carefully checked at the highest level, a number of his important recommendations were not implemented. In particular, the independent controller of the legislation on terrorism has repeatedly called for the mandatory requirement of suspicion to exercise certain powers provided for in Appendix No. 7, including the right to delay and download the contents of phones and laptops, and criticized the fact that the answers received under pressure not always explicitly rejected as unacceptable in criminal cases. Consequently, although the work of the independent controller of terrorism legislation was of considerable value, it could not compensate for other insufficient guarantees applicable to the operation of the provisions of Appendix 7.
(f) Conclusion. At the time the applicant was stopped, the right to interrogate the persons provided for in Appendix No. 7 was not sufficiently defined and was not accompanied by appropriate legal safeguards against abuse. Although the lack of a “reasonable suspicion” requirement did not in itself render the whole procedure illegal, considered in conjunction with the fact that the interrogation could last up to nine hours, during which the person was obliged to answer questions without the right to a lawyer, and with the limited opportunity to appeal in court the method of exercising the powers provided for in Appendix No. 7, these powers "did not comply with the law."
The European Court did not take into account the changes introduced by the Law on Antisocial Behavior, Crimes and Police Actions of 2014 and the Code of Rules (as amended), and also considered the power to detain people under Appendix N 7, which could potentially mean a much more serious interference with the Convention rights.
In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court has found that the finding of a violation of the Convention in itself constituted sufficient just satisfaction for any non-pecuniary damage.