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Fourth Section Partial Decision As to The FOURTH SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application nos. 24027/07, 11949/08 and 36742/08 by Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) against the United Kingdom The European Court of Human Rights (Fourth Section), sitting on 6 July 2010 as a Chamber composed of: Lech Garlicki, President, Nicolas Bratza, Giovanni Bonello, Ljiljana Mijovi ć, David Thór Björgvinsson, Ledi Bianku, Mihai Poalelungi, judges, and Lawrence Early, Section Registrar , Having regard to the above applications lodged on 10 June 2007, 5 March 2008 and 1 August 2008, Having regard to the interim measures indicated under Rule 39 of the Rules of Court, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1. The present decision relates to three applications, nos. 24027/07, 11949/08 and 36742/08. The first application was lodged on 10 June 2007 by two British nationals, Mr Babar Ahmad (“the first applicant”) and Mr Haroon Rashid Aswat (“the second applicant”). They were both born in 1974. The second application was lodged on 5 March 2008 by Mr Syed Tahla Ahsan (“the third applicant”), who is also a British national. He was born in 1979. The third application was lodged on 1 August 2008 by Mr Mustafa Kamal Mustafa, known more commonly as Abu Hamza (“the fourth applicant”). He was born in 1958. His nationality is in dispute. He contends that he was deprived of his Egyptian nationality in the 1980s; the United Kingdom Government maintain that he still has Egyptian nationality. The Government have decided to deprive him of his British citizenship and he is currently appealing against that decision. The Government anticipate that a full hearing of that appeal will take place at the end of 2010. 2. The first, second and third applicants are represented by Ms G. Peirce, a lawyer practising in London with Birnberg Pierce and Partners, Solicitors, assisted by Mr E. Fitzgerald Q.C. and Mr B. Cooper, counsel. The fourth applicant is represented by Ms M. Arani, a lawyer practising in Middlesex. The Government are represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. 3. The first and third applicants are currently detained at HMP Long Lartin. The second applicant is currently detained at Broadmoor Hospital and the fourth is currently detained at HMP Belmarsh. A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1. The United States' indictments 4. The applicants have been indicted on various charges of terrorism in the United States of America. They are the subject of two separate sets of criminal proceedings. The first set concerns the first applicant, Mr Ahmad, and the third applicant, Mr Ahsan, who were indicted by Federal Grand Juries sitting in Connecticut. The second set of proceedings concerns the second applicant, Mr Aswat, and the fourth applicant, Abu Hamza, who were indicted by Federal Grand Juries sitting in the Southern District of New York. The details of each indictment are set out below. On the basis of each indictment, the United States Government requested each applicant's extradition from the United Kingdom. Each applicant then contested his proposed extradition in separate proceedings in the English courts. a. The indictment concerning the first and third applicants 5. The indictment against the first applicant was returned on 6 October 2004. It alleges the commission of four felonies between 1997 and August 2004: conspiracy to provide material support to terrorists; providing material support to terrorists; conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country; and money laundering. On 28 June 2006, a similar indictment was returned against the third applicant, save that the charge of money laundering was not included. For both indictments, the material support is alleged to have been provided through a series of websites whose servers were based in Connecticut. The charge of conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country is based on an allegation that the first and third applicants were in possession of classified US Navy plans relating to a US naval battle group operating in the Straits of Hormuz in the Persian Gulf and discussed its vulnerability to terrorist attack. b. The indictment concerning the second and fourth applicants 6. The indictment against the fourth applicant was returned on 19 April 2004. It charges him with eleven different counts of criminal conduct. These cover three sets of facts. 7. The first group of charges relate to the taking of sixteen hostages in Yemen in December 1998, four of whom died during a rescue mission conducted by Yemeni forces. The indictment charges the fourth applicant with conspiracy to take hostages and hostage taking and relates principally to his contact with the leader of the hostage takers, Abu Al-Hassan, before and during the events in question. Several of the hostage-takers were tried and convicted in Yemen in May 1999. Abu Al-Hassan and two others were sentenced to death and a fourth to twenty years' imprisonment. The execution of Abu Al-Hassan took place on 17 October 1999. In 1999 investigations also took place simultaneously in the United Kingdom and the United States. In the course of the British investigation, the fourth applicant was arrested and interviewed between 15 and 18 March 1999. Officers from the Metropolitan Police flew to Yemen to conduct inquiries. One of the hostages, Mary Quinn, was also interviewed by the Federal Bureau of Investigations and detectives from Scotland Yard. The British investigation then concluded that, while links between the applicant and the hostage takers were established, evidentially the links proved inconclusive and relied heavily on information gathered from Yemeni sources which would not ordinarily be admissible during a British trial. It also appears that no further action was taken in the American investigation at this time. Then on 22 October 2000, Ms Quinn recorded an interview with the applicant in London and, when this became available to the FBI in 2003, the American investigation recommenced, leading to the applicant's indictment. 8. The second group of charges relates to the conduct of violent jihad in Afghanistan in 2001. The indictment alleges that the fourth applicant provided material and financial assistance to his followers and arranged for them to meet Taliban commanders in Afghanistan. In this respect, four counts of the indictment charge him with providing and concealing material support and resources to terrorists and a foreign terrorist organisation and conspiracy thereto. A further count charges him with conspiracy to supply goods and services to the Taliban. 9. The third group of charges relates to a conspiracy to establish a jihad training camp in Bly, Oregon between June 2000 and December 2001. Two counts charge the fourth applicant with providing and concealing material support and resources to terrorists and providing material support and resources to a foreign terrorist organisation (Al Qaeda); a further two counts charge him with conspiracy to the main two counts. On 12 September 2005, a superseding indictment was returned which named and indicted the second applicant as the fourth applicant's alleged co- conspirator in respect of the Bly, Oregon charges. On 6 February 2006 a second superseding indictment was returned, which indicted a third man, Oussama Abdullah Kassir, as a co- conspirator in respect of the Bly, Oregon charges. 10. A principal prosecution witness in relation to the Bly, Oregon and Afghanistan charges is Mr James Ujaama, a United States national, who was originally indicted as a co-conspirator in respect of those charges. It is alleged by the United States Government that the fourth applicant arranged for Mr Ujaama to travel to Afghanistan with another original co-conspirator, Feroz Abassi, and to meet a Taliban commander with the purpose of participating in violent jihad . Mr Abassi was captured in Afghanistan, detained there and then transferred to the United States' naval base at Guantánamo Bay, Cuba. He was later returned to the United Kingdom. Mr Ujaama subsequently entered into a plea agreement. It is alleged by the second and fourth applicants that Mr Ujaama was coerced into providing evidence by the threat of being sent to the United States' detention facility at North Carolina brig. In addition, it appears that, subject to the plea agreement, the United States Government agreed to lift the “special administrative measures” (or SAMs) to which Mr Ujaama had been subjected. These are additional security measures which can be imposed on persons detained in federal prisons. The measures include, but are not limited to, housing the defendant in administrative detention and restricting the defendant's correspondence, visiting rights, contacts with the media, or telephone use. Although reviewable annually they can be continued indefinitely. It further appears that in the plea agreement, the United States agreed to forego any right it has to detain Mr Ujaama as an enemy combatant. Mr Ujaama was previously sentenced to two years' imprisonment. He later left the United States in violation of his parole terms and was re-arrested. According to information provided by the United States Government, he is due to be resentenced in spring 2010 11. Mr Kassir, a Swedish national, was extradited to the United States from the Czech Republic in September 2007. His trial began in the Federal District Court for the Southern District of New York on 13 April 2009.
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