On 17 January 2012, the European Court of Human Rights (ECtHR) issued its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords who had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. In this important decision, the Court in Strasbourg chose a new legal path. It firstly validated the “diplomatic assurances” given by the government of Jordan to the UK’s authorities regarding the risk of torture and has seen it as a proper assurance, claiming that if they were to surrender him to Jordan, this would not be in violation of article 3 which provides that “no one shall be subjected to torture or inhuman treatment or punishment”.[i]
Secondly, the Court for the first time used the notion of the right to a fair trial provided by article 6 of the aforementioned convention. Indeed, the Human Rights Court said there remained a real risk that evidence obtained by torture would be used against Qatada, or Omar Othman as he is also known, and that would amount to a "flagrant denial of justice" and would be in violation of his fundamental right to a fair trial.
Qatada, a Jordanian national born in 1960 near Bethlehem, was first detained in Britain in 2002 as an al-Qaida suspect.[ii] He has been convicted in absentia in Jordan of being involved in two terrorist conspiracies in 1999 and 2000 to carry out bomb attacks. The ECtHR decision says that the evidence of his involvement was obtained by torturing one of his co-defendants and there was a high probability it would be used at his re-trial and that it would be "of considerable, perhaps decisive importance".[iii] It needs noting that more than ten years after 9/11 there are about half a dozen remaining terror suspects that Britain is trying to deport to countries, including Algeria and Egypt. It is very common for applicants to invoke article 3 and very often the Court’s ruling forbids any deportation under this article, however it is the very first time the Court bases its argument on article 6 and the “right to a fair trial” in order to find the deportation, in violation of the Convention. This needs to be juxtaposed against various terrorist suspects who that have been deported to their home countries, most of the time in North Africa or in the Middle East, often times being tortured on their return.[iv]
Regarding the case of Jordan, even though the Court clearly establishes that torture is still “widespread and routine” particularly against “Islamist detainees” and in “total impunity”,[v] it ruled that “in a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider“.[vi] Indeed, the government of Jordan and of UK signed a “memorandum of understanding” (MOU) setting out a series of assurances of compliance with international human rights standards, which would be adhered to when someone was returned to one State from the other.[vii] In this case the Court does not consider that the general human rights situation in Jordan excludes accepting any assurances whatsoever from the Jordanian Government, this will only be the case if “the general situation in a country will mean that no weight at all can be given to assurances”. Considering all the torture and human rights violations reported in Jordan, one’s might wonder what does a State has to do more in order for the Court to assess that no weight should be given to the assurances. The Human Rights Court then noted that without those assurances made by the Jordanian Government, there would be a real risk of ill-treatment.[viii] In other words, it based its assessment solely on the diplomatic assurances, admitting at the same time that those assurances are now some sort of guarantees against state’s torture, giving them a new role and a very important one.
The Court is now telling us that the protection from torture can now be provided by diplomatic assurances mechanism made by States bilateral agreements. However the Court emphasises the specificities of this particular agreement as being a product of real efforts, the MOU, is superior in both its detail and its formality to any assurances which the Court has previously examined. It strengthens the fact that the MOU is also unique in that it has withstood the extensive examination that has been carried out by an independent tribunal, SIAC [The United Kingdom special immigration appeal commission], which had the benefit of receiving evidence adduced by both parties, including expert witnesses who were subject to extensive cross-examination. The Court considered then that there is sufficient evidence for it to conclude that the assurances were given in good faith by a Government whose bilateral relations with the United Kingdom have, historically, been very strong. Moreover, they have been approved at the highest levels of the Jordanian Government, having the express approval and support of the King himself.[ix]
Following this detailed reasoning the Court finally concluded that, on the basis of the evidence before it, the applicant’s return to Jordan would not expose him to a real risk of ill-treatment and so would not violate the article 3 of the European convention on Human rights. It is hard to draw a new pattern from this ruling as it does give a green light for deportation however under very strict and defined conditions. What is new is that diplomatic assurances used to be used before to ascertain a reduced risk of torture, however now it seems that they can be used to defuse proven torture practices. It looks like States that want to deport detainees to countries where they would face torture or ill-treatment might want to conclude some kind of “memorandum of understanding” (MOU) on the same example, to avoid the Court’s condemnation under article 3.
Even though this former development might look like a step forward, in the same decision the Court for the first time applied the article 6 (“the right to a fair trial”) to prevent a State from deporting a detainee. Article 6 has always been mentioned in previous decisions of the Human Rights Court; however it is the first time it found a proper application into a specific case. That is because the allegation made in this case was serious; it was related to the use of evidence obtained by torture. The Court underlines the fact that International law, as well as the common law before it, has declared its unequivocal opposition to the admission of torture evidence. Outside this fundamental principle, which was designed to avoid any a posteriori legitimisation of such barbaric practice, the Court also highlights the fact that such method most of the time leads to fake declarations and accusations - “torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.“[x]
It is unanimously agreed that the admission of evidence obtained by torture is in contradiction with the right to a fair trial and is consequently in violation of article 6. Furthermore, the Court does not exclude that similar considerations may apply in respect of evidence obtained by other forms of ill-treatment which fall short of torture. The Court recognised without any difficulties that the treatment inflicted to Abu Qatada’s co-accused in order to obtain their declarations could be analyse as torture falling under article 3 of the European convention and then to conclude that the Jordanian proceedings to which Abu Qatada would be subject would be unlikely to meet the standards of Article 6. They ruled, however, that those Article 6 standards would not satisfy the tests of flagrant denial.
One’s needs to assess if there are enough plausible reasons to believe that evidence has been obtained by torture. The Court refused to follow the analysis used by the House of Lords on the balance of probabilities test as they have set the bar too low.[xi] They chose to adjust the burden of proof in order for it to be more in favour of the applicant because as it says “it would be unfair to impose any higher burden of proof on him.” In its judgment the ECtHR first clarified the test (“flagrant denial of justice”) and then, for the first time, applied it in favour of an applicant in order to rule that there was a real risk that if he was deported to Jordan Abu Qatada would face a trial at which evidence obtained by torture would be used therefore meant that it would be contrary to Article 6 ECHR for the UK to deport him.
This decision condemns clearly the House of Lords’ ruling as it does not believe that the “balance of probabilities test, as applied by the majority of the House of Lords is appropriate in this context.” It is the fifth time; the Strasbourg’s Judges overturned the House of Lords, which gives a good overview of the protection of Human Rights in the UK.
This case was not an easy one for the European Court, considering the climate relating to the War on Terror in Europe, however the Court did not capitulate to the state’s pressure especially after David Cameron’s many calls to reform the Human rights system in Europe. This decision can be seen as a significant step towards the development of a new jurisprudence on torture. The Prime Minister, David Cameron, went to travel to Strasbourg last week to call for urgent reform of the European Court of Human Rights and in the meantime the government is considering an appeal against the European Court's ruling and will continue attempts to secure diplomatic assurances from Jordan that Abu Qatada will not face a trial based on torture-tainted evidence in order to deport him as soon as possible.[xii]
[i] Here is a link to the European Convention on Human rights http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457 5C9014916D7A/0/CONVENTION_ENG_WEB.pdf
[ii] See for more details about his arrest http://www.guardian.co.uk/uk/2002/oct/25/politics.terrorism?INTCMP=SRCH
[iii] See Paragraph 281 of the decision.
[iv] See for more details on cases http://www.echr.coe.int/NR/rdonlyres/6A1332D3-86F0-4BA3-A0AD-2D52EA7B5DA7/0/FICHES_Terrorisme_FR.pdf
[v] See paragraphs 106 to 124 and 191 of the decision.
[vi] See paragraph 187 of the decision.
[viii] See paragraph 182 of the decision.
[ix] See paragraphs 194-195 of the decision.
[x] See paragraph 264 of the decision.
[xi] See paragraph 274 of the decision.
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