Thursday, 19 April 2012

Pesky time-limits and Abu Qatada

Updates 20th April

In all litigation, lawyers need to pay particular attention to time-limits.  They exist for good reason since without them there might be no finality.

This truism has arisen in the Abu Qatada case.  He has never been charged with any offence in the UK but British authorities have previously said he gave advice to those who aimed "to engage in terrorist attacks, including suicide bombings."  Jordan wishes to try him for plotting bomb attacks during the country's millennium celebrations."  The British government cannot wait to deport him.

On Tuesday 17th April, Abu Qatada was arrested with a view to his deportation to Jordan - The Guardian 17th April.  On 17th January 2012, the European Court of Human Rights 4th Section gave judgment in Othman (abu Qatada) v UK .  For discussion of the case see the earlier post on this blog "Theresa May's trip to Jordan."

The European Convention on Human Rights Article 43 states:

"Referral to the Grand Chamber
1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.
2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.
3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

Hence, the parties (i.e. Abu Qatada and the British government) had 3 months from 17th January in which to enter a request that the case be referred to the Grand Chamber.  On 17th April, Abu Qatada's legal team made a request that the case be referred.  However, it appears that the British government considered that the 3 months ended at midnight on 16th January.  If the government's view is correct then Abu Qatada's request would be out of time.  Of course, only the E Court of HR itself can give a definite answer to this matter.

Did the government have a correct interpretation of the 3 month rule?

In seeking to answer the issue, it may be that the court's guidance on admissibility of cases offers some assistance.  Of course, this relates to the question of when a case must be commenced in the E Ct HR in the first place.

Para. 83 of the admissibility guidance states - "Time starts to run on the date following the date on which the final decision has been pronounced in public, or on which the applicant or his representative was informed of it, and expires six calendar months later, regardless of the actual duration of those calendar months."  This was considered by the 5th section of the E Ct HR in Otto v. Germany.

In Otto v Germany, the court stated that the time-limit for admissibility rule reflected the wish of the contracting Parties not to have old decisions challenged after an indefinite period.  The rule served not only the interests of the Government but also legal stability as an intrinsic value, while also answering the need to leave the applicant time to decide whether to apply to the Court and to prepare his application. This rule also places a time-limit on the supervision provided by the Court and tells both private individuals and State authorities the period beyond which its supervision ceases.

The Court reiterated that the day on which the final domestic decision is pronounced is not counted in the six-month period referred to in Article 35(1) of the Convention. Time starts to run on the date following the date on which the final decision has been pronounced orally in public, or on which the applicant or his representative was informed of it, and expires six calendar months later, regardless of the actual duration of those calendar months.

In Otto v Germany the six-month period provided for in Article 35(1)of the Convention started to run on 28 November 2005 and expired on 27 May 2006.

If the Art 43 request for referral time-limit were to be interpreted in the same way then the 3 months for Abu Qatada would have expired at the end of 17th April and not 16th.

Although initial admissibility and a request for referral under Art 43 are not the same things, there seems to be no sensible reason why the E Ct HR would choose to operate the Article 43 referral time-limit rule in a different way to the initial admissibility time-limit rule.

Another relevant document is the E Ct HR's  General Practice on requests for referral under Art 43.  This notes that a request would be ruled inadmissible if not lodged in the 3 month period and states that "the period of three months within which referral may be requested starts to run on the date of the delivery of the judgment, irrespective of whether the party concerned may have learned about it at a later stage. It expires three calendar months later and is not interrupted by bank holidays or periods of judicial recess. The request for referral should reach the Registry of the Court before the expiry of the above-mentioned period."

A fair reading of this would also seem to suggest that if judgment is delivered on 17th January then the 3 months would expire on 17th April.

Further analysis:

For an excellent and detailed analysis of this, see Carl Gardner's HEAD OF LEGAL blog - Abu Qatada and the law of time   As Gardner points out, there is no need to wait until the 3 month period has elapsed before arresting the individual with a view to deportation.  The arrest of Abu Qatada with a view to his deportation is unlikely to be unlawful since the 3 month limit applies merely to lodging a request with the court for a referral.

Perhaps the only surprise in this matter is that Abu Qatada did not seek to refer the case much earlier.  The Head of Legal post suggests a possible reason for that.

The government probably did not think it necessary to make a referral request itself since government had, in the January 2012 judgment, won the ability to deport Abu Qatada provided that the necessary assurance on the use of torture evidence was obtained from Jordan.  Theresa May (Home Secretary) informed the House of Commons that the assurance had been received - see Telegraph - Theresa May's statement to the House of Commons on 17th April.

Media comment - The Guardian 19th April - "How Theresa May came close to deporting Abu Qatada"

Addendum 20th April:  See also Head of Legal blog's follow-up "Abu Qatada - a bit more about time"


  1. What a 'cock up' theory, as opposed to any conspiracY theory that Qatada was a tool of the Security Services.

  2. Would it no be simpler if the time conventions eschewed calendar months as the unit of measurement and adopted days instead? Calendar months are not a stable unit of time measurement, whereas days are.

    For instance, the convention could say that deadlines must be expressed as the number of days elapsed between the trigger event and the deadline. So a 3 month appeal window would say, "after 91 days have elapsed, counting judgement day as day zero, the judgement becomes final and no appeal is admissible."

    I believe this is unambiguous.