police custody which lasted seven days, a period which was in conformity with
the Turkish law at the relevant time.
--Igdeli v. Turkey, ECHR, 20 June 2002 (paras. 34-35).
*****
In accordance with the relevant law and practice, the decision whether a
deportation and detention order should invoke national security -- with the
automatic consequence of excluding any judicial review of lawfulness -- is fully
within the discretion of the Ministry of the Interior. No court is empowered to
enquire into the lawfulness of the detention. The detention order itself, as in the
present case, states no reasons…. Moreover, Mr Al-Nashif was detained
practically incommunicado and was not allowed to meet a lawyer to discuss any
possible legal challenge to the measures against him.
That is a situation incompatible with Article 5 § 4 of the Convention and its
underlying rationale, the protection of individuals against arbitrariness. National
authorities cannot do away with effective control of lawfulness of detention by
the domestic courts whenever they choose to assert that national security and
terrorism are involved….
[…]
Even where national security is at stake, the concepts of lawfulness and the rule
of law in a democratic society require that measures affecting fundamental
human rights must be subject to some form of adversarial proceedings before an
independent body competent to review the reasons for the decision and relevant
evidence, if need be with appropriate procedural limitations on the use of
classified information….
The individual must be able to challenge the executive's assertion that national
security is at stake. While the executive's assessment of what poses a threat to
national security will naturally be of significant weight, the independent
authority must be able to react in cases where invoking that concept has no
reasonable basis in the facts or reveals an interpretation of “national security”
that is unlawful or contrary to common sense and arbitrary.
Failing such safeguards, the police or other State authorities would be able to
encroach arbitrarily on rights protected by the Convention.
--Al-Nashif v. Bulgaria, ECHR, 20 June 2002 (paras. 94, 123-124).
*****
What is at stake here is the importance of Article 5 in the Convention system: it
enshrines a fundamental human right, namely the protection of the individual
against arbitrary interferences by the State with his right to liberty. Judicial
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