The Importance of Time
April 19th, 2012 by Louise Humphreys
Posted In: General
Once again the importance of getting your dates right when dealing with court cases (or indeed any statutory appeal) is brought to the fore with the press reporting of the Government's latest attempts to deport Abu Qatada.
You've probably read the reports, but just in case you haven't (and without going into the political, moral or legal issues surrounding the proposed deportation in its own right)...
The Government wants to deport Abu Qatada to Jordan. Abu Qatada does not want to be deported.
On 17 January 2012, judges at the European Court of Human Rights blocked the Government's efforts on the grounds that Abu Qatada would not face a fair trial in Jordan because evidence against him could be based on torture. However, the Court also ruled that Abu Qatada himself would not be at risk of torture were he to be returned.
Since the judgment was issued, the Home Secretary obtained new assurances from the Jordanian government that he would not face trial on evidence obtained through torture and on 17 April 2012, the Home Secretary ordered the arrest of Abu Qatada with a view to deporting him.
Later that same day, lawyers acting for Abu Qatada lodged a request for a referral to the Grand Chamber of the Court leading to the current row over whether the request for the referral was made in or out of time. So far the Court has agreed that the referral was made within time.
For those of you interested in such things, Article 43 of the European Convention on Human Rights states that:
Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.
Article 44.2(b) says that the judgment becomes final:
...three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested
Oh the joys of ambiguity.
The European Court of Human Rights has considered the issue of time limits, albeit not in relation to referrals but the six month period for bringing a claim to the Court in the first place. In Otto v Germany, the Court said
the day on which the final domestic decision is pronounced is not counted in the six-month period referred to in Article 35 § 1 of the Convention. Time starts to run on the date following the date on which the final decision has been pronounced
and in Praha v Czech Republic the Court stated that
the six-month period begins to run on the day after the date on which the final domestic decision was pronounced
Applying this approach to referral cases as well as a purposive approach, it would appear that Abu Qatada's contention that the time period began on 18 January 2012 and thus expired at midnight on 17 April 2012 is correct.
Getting your dates wrong can have unintended and sometimes disastrous consequences for your case.
Of course the other thing that this saga demonstrates is the importance of precision in legal drafting. Too often lawyers are accused of verbosity when it comes to drafting. However, imprecision provides far greater scope for argument.
The Grand Chamber of the European Court of Human Rights has now ruled in the Abu Qatada case. A panel of judges found the appeal had arrived in time, but considered that the request for an appeal should be rejected.