A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
69
and 41 above). The Court considers that during these periods of detention it
could reasonably be said that action was being taken against these
applicants with a view to deportation, in that it appears that the authorities
were still at that stage in the course of establishing their nationalities and
investigating whether their removal to their countries of origin or to other
countries would be possible (see Gebremedhin [Gaberamadhien] v. France,
no. 25389/05, § 74, ECHR 2007-II). Accordingly, there has been no
violation of Article 5 § 1 of the Convention in respect of the second and
fourth applicants.
169. It is true that even the applicants who were detained the longest
were not held for as long as the applicant in Chahal (cited above), where the
Court found no violation of Article 5 § 1 despite his imprisonment for over
six years. However, in the Chahal case, throughout the entire period of the
detention, proceedings were being actively and diligently pursued, before
the domestic authorities and the Court, in order to determine whether it
would be lawful and compatible with Article 3 of the Convention to proceed
with the applicant’s deportation to India. The same cannot be said in the
present case, where the proceedings have, instead, been primarily concerned
with the legality of the detention.
170. In the circumstances of the present case it cannot be said that the
first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants
were persons “against whom action [was] being taken with a view to
deportation or extradition”. Their detention did not, therefore, fall within the
exception to the right to liberty set out in Article 5 § 1 (f) of the Convention.
This is a conclusion which was also, expressly or impliedly, reached by a
majority of the members of the House of Lords (see paragraph 17 above).
171. It is, instead, clear from the terms of the derogation notice and
Part 4 of the 2001 Act that the applicants were certified and detained
because they were suspected of being international terrorists and because it
was believed that their presence at liberty in the United Kingdom gave rise
to a threat to national security. The Court does not accept the Government’s
argument that Article 5 § 1 permits a balance to be struck between the
individual’s right to liberty and the State’s interest in protecting its
population from terrorist threat. This argument is inconsistent not only with
the Court’s jurisprudence under sub-paragraph (f) but also with the principle
that sub-paragraphs (a) to (f) amount to an exhaustive list of exceptions and
that only a narrow interpretation of these exceptions is compatible with the
aims of Article 5. If detention does not fit within the confines of the subparagraphs as interpreted by the Court, it cannot be made to fit by an appeal
to the need to balance the interests of the State against those of the detainee.
172. The Court reiterates that it has, on a number of occasions, found
internment and preventive detention without charge to be incompatible with
the fundamental right to liberty under Article 5 § 1, in the absence of a valid
derogation under Article 15 (see Lawless v. Ireland (no. 3), 1 July 1961,
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