Abu Qatada’s compensation

It’s all about him at the moment, isn’t it? Now, the ECtHR has decided to give him €2,800 to compensate him for his detention in Belmarsh prison from 2002 to 2005.

There’ll be strong feelings about this ruling, both from those who think Abu Qatada should have been deported years ago regardless of human rights law, and from those who believe Britain’s treatment of him has been scandalous from first to last. I’m in neither camp (I’d like to see him deported, but only if he won’t be tortured). I do want, though, to make some things clear about this judgment because I think polarised attitudes to Qatada may lead to the truth about it being obscured.

First, this isn’t really a new finding that Abu Qatada’s human rights have been breached. The House of Lords decided in 2004 that his detention in Belmarsh under the Anti-Terrorism, Crime and Security Act 2001 breached his article 5 and article 14 Convention rights; today’s judgment relates to that detention. The reason he had to go to Strasbourg for compensation is that the Lords ruled the legislation itself, ATCSA 2001, incompatible with the Convention rights: because the legislation was incompatible, the detention was lawful under the Human Rights Act. It’s a counter-intuitive point that many people misunderstand about the Human Rights Act, but it explains why the Lords did nothing except make a “declaration of incompatibility” in respect of ATCSA 2001. Abu Qatada could not be compensated by any British court.

So, today’s judgment does not say (as this BBC article unintentionally manages to imply I think) that his current detention or previous treatment under a control order is a breach of his human rights. And there are a few more points worth making about the ruling.

First, and again contrary to the impression some early news reports seemed to imply, Strasbourg rejected the argument that Abu Qatada has been subjected to torture or inhuman treatment in Britain.

Second and crucially, in a point that should be noted by Victoria Brittain, Strasbourg has rejected his argument that British proceedings before SIAC were unfair to him because of the use of secret evidence. See para. 222 of the judgment:

[The Court] notes that the open material against the sixth, seventh, eighth, ninth and eleventh applicants included detailed allegations about, for example, the purchase of specific telecommunications equipment, possession of specific documents linked to named terrorist suspects and meetings with named terrorist suspects with specific dates and places. It considers that these allegations were sufficiently detailed to permit the applicants effectively to challenge them. It does not, therefore, find a violation of Article 5 § 4 in respect of the sixth, seventh, eighth, ninth and eleventh applicants.

Abu Qatada is the eighth applicant – see para. 53.

Finally, paras. 249-253 show that the ECtHR has deliberately given a low award of damages here because of the background. It did not go so far as to deny any compensation at all – the reason for that being that the detainees has not actually taken part in acts of violence. But the court said the UK was genuinely trying to combat terrorism, and that that makes a difference.

This is not quite the anti-British, pro-villain ruling some will fulminate about; nor is it the indictiment of human rights in the UK that others might be tempted to trumpet.