Chapter4 Access to Justice | 95 or subject to the jurisdiction of the State party.” 264 Accordingly, “the situation in which an individual ’s attempts to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter to the guarantee of [equality before the courts and tribunals].” 228. In the Case of A. and Others v. the United Kingdom, the European Court of Human Rights found that the indefinite detention of 11 foreigners suspected of involvement in terrorism in high security conditions under a statutory scheme which permitted the indefinite detention of non-nationals was a disproportionate measure that discriminated unjustifiably between nationals and non-nationals. The European Court of Human Rights considered that: the House of Lords was correct in holding that the impugned powers were not to be seen as immigration measures, where a distinction between nationals and non-nationals would be legitimate, but instead as concerned with national security. Part 4 of the 2001 Act was designed to avert a real and imminent threat of terrorist attack which, on the evidence, was posed by both nationals and non-nationals. The choice by the Government and Parliament of an immigration measure to address what was essentially a security issue had the result of failing adequately to address the problem, while imposing a disproportionate and discriminatory burden of indefinite detention on one group of suspected terrorists. As the House of Lords found, there was no significant difference in the potential adverse impact of detention without charge on a national or on a non-national who in practice could not leave the country because of fear of torture abroad. 265 229. The IACHR is also deeply concerned over the uncertainty regarding the application of the U.S. Constitution in Guantanamo Bay, and the fact that not all due process guarantees apply in the military commissions. Common Article 3 of the Geneva Conventions prohibits the passing of sentences without “previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees.” The right to be tried by a competent, independent and impartial tribunal, mentioned above, and the principle of legality are part of those basic requirements, which are not being met by the military commissions. 230. Although convictions issued by military commissions may have up to four levels of review, both the Trial Judiciary and the CMCR are not part of an independent judiciary but are subject to Executive appointment and control. The first opportunity for a case to be heard, on appeal, before an independent judiciary would be the appeal before the DC Circuit Court. According to inter-American standards, a criminal proceeding is a single proceeding in various stages, from first to last instance. The concept of an independent and impartial tribunal and the principle of due process apply throughout all those phases and must be observed in 264 265 Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007). ECHR, A. and Others v. the United Kingdom, no. 3455/05, 19 February 2009, § 186. Inter-American Commission on Human Rights | IACHR