Wednesday, 9 May 2012

Pesky Time Limits and Abu Qatada - No.2

On 19th April Law and Lawyers posted on Pesky Time Limits and Abu Qatada.  In that post it was argued that when a judgment was handed down on 17th January, it would be 17th April when the 3 month time limit for a party to request a reference to the Grand Chamber would expire.  (Such references are permitted by European Convention on Human Rights Article 43).  This view was based on the court's own case law - 5th section of the E Ct HR in Otto v. Germany.  Abu Qatada lodged his request for a reference on 17th April.  A five judge panel of the European Court of Human Rights has held that he was in time.  This is, of course, a finding against the British government which insisted that the time limit expired on 16th April.

Interestingly, the expiry time was not entirely easy
to state with accuracy and the estimable Joshua Rozenberg writing in The Guardian 8th May argued that - "Legal advice to the home secretary and common sense both suggest that "within three months from" January 17 means no later than April 16."    Rozenberg continued - "But since there is clearly some doubt over the issue and Abu Qatada's team were apparently told by court officials that the deadline was April 17, any human rights court would surely give an applicant the benefit of the doubt."

Despite all of this, Abu Qatada's case will not be referred to the Grand Chamber.   His request was rejected - see The Guardian 9th May 2012.   Reasons are not given - more is the pity.  Appeals are normally rejected if they do not raise a sufficiently serious new issue or legal question.  On this point, I very much agree with a good post on UK Human Rights Blog which uses a lyric from Simon and Garfunkel's Hazy Shade of Winter as its title - "Time, time, time, look what's become of me."  In this post, barrister Adam Wagner suggests that "in the interests of justice and transparency, this time [the judges] should raise their heads over the parapet and explain how they have reached their decision."  Regrettably, they did not do so.

The court's judgment of 17th January became final - Othman (abu Qatada) v UK  and Qatada's attempts to remain in the U.K. will now become a matter for the English courts and it may well be that this litigation will continue for some time to come.

See UK Human Rights Blog - Adam Wagner - "Abu Qatada appeal was in time but will not be heard by Grand Chamber."



  1. I have come around to your way of thinking in relation to reasons should be given. Initially I simply accepted what is stated in the Court's own rules. However, it is arguable that the rule is ultra vires the ECHR.

    "Article 45 – Reasons for judgments and decisions

    Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible".

    In my view, it is absurd to have two rules covering the same subject which are at odds with each other.

    Unfortunately, there is no provision within the Council of Europe for applicants or their lawyers to raise the issue. Perhaps, one day the Committee of Ministers or PACE will spot the anomaly.

    1. There is no good reason why ANY court - in a democratic society - should not set out its reasons for ANY decision. This should apply no matter what the court, the case, the parties. When the Human Rights Act 1998 came into force in October 2000, even the lowly Magistrates' Courts were told that reasons must be given for every decision. For a court as important as the European Court of Human Rights not to give reasons - PUBLICLY - is appalling. Our own Supreme Court is also remiss in terms of reasons for refusing applications to appeal and this ought to be rectified.

      "Reasons" do not necessarily need to be lengthy. In fact, some reasoned judgments are FAR too detailed. However, the reasons must indicate why the court decided the point the way it did.

  2. For once I agree with what Dominic Raab has to say:

    “Yesterday’s hearing was held in secrecy. The verdict was not written down. Nor did they give reasons. It was just announced by a court lackey. Imagine the uproar if a British court behaved in such an arrogant way” (Daily Express).

  3. ...Qatada's attempts to remain in the U.K. will now become a matter for the English courts and it may well be that this litigation will continue for some time to come

    Well, fancy that!

    The lack of explanation/reasoning is telling....

  4. A UK Press release 8139/09 [2012] ECHR 817 was published on 9 May 2012, and essentially reproduces the EDHR press release [ECHR 022 (2011)] of 17th January 2012, except for the footnote 1 referred to in the first paragraph:

    [1] Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

    So the 'cock-up' of the 'pesky time limits' was just a filibustering, of sorts, to prevent the 'five European judges subjecting the case to further examination'.

    How handy for those wishing to avoid a gamut of uncomfortable questions.

  5. A SIAC Application for Bail Judgement by Justice Mitting of 28th May 2012