Re: Erneute Forderungen nach mehr Überwachung in Großbritannien

[Martin Schröder <martin@oneiros.de>]

On 2005-07-23 14:48:37 +0200, Martin Schröder wrote:
> > Hast Du das ungefähre Datum, an dem das Gesetz vom Parlament
> > beschlossen wurde?
> 
> Gesetz? Parlament? Es ist Krieg! :-(

Es war doch ein Gesetz:
http://en.wikipedia.org/wiki/Anti-terrorism,_Crime_and_Security_Act_2001
-----------------------------
Part IV of the ATCSA

One of the more notable powers in ATCSA was set out in Part IV of
the Act which permitted the detention of non-British citizens who
the Home Secretary reasonably believed to be a terrorist, and
whose presence in the United Kingdom is a threat to national
security. "Terrorist" for the purposes of Part IV of the ATCSA
meant a person who is or has been concerned in acts of
"international terrorism", or belongs or has links to an
international terrorist group. "Terrorism" has the meaning set
out in section 1 of the Terrorism Act 2000.

Non-British citizens in the jurisdiction suspected of involvement
in terrorism will ordinarily be prosecuted with criminal offences
associated with those activities. If there is insufficient
admissible evidence to prosecute them such persons are normally
deported using powers under the Immigration Act 1971 which
permits the deportion of persons who are a threat to national
security. However a ruling by the European Court of Human Rights
in the case of Chahal v United Kingdom in 1996, prohibited the
deportation of persons to another country if there were
substantial grounds for believing that the person would be
subjected to torture or inhuman or degrading treatment contrary
to Article 3 of the European Convention on Human Rights.

The justification offered for enacting the powers set out Part IV
of the ATCSA was that there were foreigners in the United Kingdom
who were reasonably suspected of being involved in international
terrorism who could not be prosecuted because there was
insufficient admissible evidence to sustain a prosecution. At the
same time the presence of these individuals in the United Kingdom
was a risk to national security but they could not be deported to
their country of origin because of a fear that they would be
tortured. Furthermore they could not be deported to any other
third country because no other country was willing to admit them.
Faced with this conjunction of legal and security problems the
government argued that the only solution was to detain such
persons until such time as the person no longer presented a risk
to national security, or some other third country was willing to
take them.

Controversy and court challenges

However Article 5(1) of the European Convention on Human Rights
sets out a very limited set of specific circumstances in which a
state may deprive persons of their liberty. These include the
detention of a person with a view to bringing them before a court
on charges of having committed a criminal offence; and the
detention of an individual with a view to deportation. The powers
of detention in the ATCSA were not grounded upon reasonable
suspicion of a criminal offence with a view to prosecution, nor
were they grounded upon detaining persons with a view to
deportation. Therefore the powers were incompatible with the
European Convention on Human Rights. In recognition of this, the
United Kingdom purported to "derogate" (i.e. opt out of) from its
obligations under Article 5 to the extent that the detention of
individuals in the circumstances permitted by the ATCSA were
incompatible with the UK's obligations under Article 5(1) of the
Convention. Article 15 of the Convention only permits a
contracting party to derogate from its obligations under the
Convention "in time of war or public emergency threatening the
life of the nation." Any derogating measures must be limited to
"the extent strictly required by the exigencies of the
situation", and must be consistent with the State's other
obligations in International Law.

The powers of detention established by the ATCSA were extremely
controversial, being essentially a form of executive authorised,
indefinite detention, exercised exclusively in relation to
foreign persons of the Muslim faith. Between 2001 and 2005 the
powers were used to detain seventeen men at HM Prison Belmarsh.
The ATCSA did provide a process for appealing to a judicial
tribunal against the Home Secretary's decision to detain in each
case. However, the government had argued that a special appellate
process was needed to deal with these appeals because of the
possibility that much of the evidence or information upon which
the Home Secretary's suspicions may be based was likely to be
sensitive information of a confidential nature whose release to
the person detained or the public, might compromise intelligence
methods, operatives, and other persons. Therefore the process
established by the ATCSA involved special rules of evidence which
most notably permitted the exclusion of the detainees and their
legal representatives from proceedings. In an attempt to ensure
that their rights were safeguarded at these times special
security vetted lawyers were appointed in the place of their
legal representatives. However there is some evidence that these
special advocates experienced difficulties effectively protecting
their interests, and a number of special advocates resigned from
their positions.

A series of legal challenges were made in respect of the powers
and processes established under the ATCSA and on December 16,
2004, the Law Lords ruled that the powers of detention conferred
by Part IV of ATCSA were incompatible with the UK's obligations
under the European Convention on Human Rights. The Court ruled by
a majority of 8-1 that the purported derogation was not
authorised by Article 15 of the European Convention on Human
Rights since the measures taken could not rationally be held to
be "strictly required by the exigencies of the situation", and
were in any event discriminatory contrary to Article 14 of the
Convention. The Court quashed the order derogating from the UK's
obligations under the Convention, and issued a declaration
pusuant to section 4 of the Human Rights Act 1998 that the
provisions of the ATCSA which empowered the preventative
detention of non-British suspected international terrorists were
incompatible with the European Convention. The effect of such a
declaration in British law is not to deprive the legislation of
legal effect, and Parliament may, if it wishes, refuse to repeal
or amend any provision declared to be incompatible. However the
making of a declaration of incompatibility carries strong moral
force, and creates considerable political pressure to address the
incompatibility.
-----------------------------
Gruß
    Martin
-- 
                    http://www.tm.oneiros.de

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