84
A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
difficulties this caused were counterbalanced in such a way that each
applicant still had the possibility effectively to challenge the allegations
against him.
219. The Court considers that SIAC, which was a fully independent
court (see paragraph 91 above) and which could examine all the relevant
evidence, both closed and open, was best placed to ensure that no material
was unnecessarily withheld from the detainee. In this connection, the special
advocate could provide an important, additional safeguard through
questioning the State’s witnesses on the need for secrecy and through
making submissions to the judge regarding the case for additional
disclosure. On the material before it, the Court has no basis to find that
excessive and unjustified secrecy was employed in respect of any of the
applicants’ appeals or that there were not compelling reasons for the lack of
disclosure in each case.
220. The Court further considers that the special advocate could perform
an important role in counterbalancing the lack of full disclosure and the lack
of a full, open, adversarial hearing by testing the evidence and putting
arguments on behalf of the detainee during the closed hearings. However,
the special advocate could not perform this function in any useful way
unless the detainee was provided with sufficient information about the
allegations against him to enable him to give effective instructions to the
special advocate. While this question must be decided on a case-by-case
basis, the Court observes generally that, where the evidence was to a large
extent disclosed and the open material played the predominant role in the
determination, it could not be said that the applicant was denied an
opportunity effectively to challenge the reasonableness of the Secretary of
State’s belief and suspicions about him. In other cases, even where all or
most of the underlying evidence remained undisclosed, if the allegations
contained in the open material were sufficiently specific, it should have
been possible for the applicant to provide his representatives and the special
advocate with information with which to refute them, if such information
existed, without his having to know the detail or sources of the evidence
which formed the basis of the allegations. An example would be the
allegation made against several of the applicants that they had attended a
terrorist training camp at a stated location between stated dates; given the
precise nature of the allegation, it would have been possible for the
applicant to provide the special advocate with exonerating evidence, for
example of an alibi or of an alternative explanation for his presence there,
sufficient to permit the advocate effectively to challenge the allegation.
Where, however, the open material consisted purely of general assertions
and SIAC’s decision to uphold the certification and maintain the detention
was based solely or to a decisive degree on closed material, the procedural
requirements of Article 5 § 4 would not be satisfied.
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