ECtHR - Othman (Abu Qatada) v. the United Kingdom, Application No. 8139/09

Facts:

The applicant, a Jordanian national, arrived in the United Kingdom in 1993 and was granted asylum. He was detained from 2002 until 2005 under the Anti-terrorism, Crime and Security Act 2001. Following his release, the Secretary of State served the applicant with a notice of intention to deport. Meanwhile, in 1999 and 2000 the applicant was convicted in absentia in Jordan of offences of conspiracy to carry out bombings and explosions. The crucial evidence against the applicant in each of the trials that led to those convictions were the incriminating statements of two co-defendants, who had subsequently complained of torture. In 2005 the United Kingdom and Jordanian Governments signed a Memorandum of Understanding (MOU) which set out a series of assurances of compliance with international human-rights standards to be adhered to when an individual was returned to one State from the other. It also provided for any person returned to have prompt and regular visits from a representative of an independent body nominated jointly by the two Governments. The Adaleh Centre for Human Rights Studies later signed a monitoring agreement with the UK Government to that effect. In the applicant’s case additional questions as to any possible retrial were put to, and answered by, the Jordanian Government. The applicant appealed against the decision to deport him but his claims, after careful examination by the domestic courts, were ultimately dismissed.

Decision & reasoning:

Reports by the United Nations and various NGOs indicated that torture in Jordan remained “widespread and routine” and the parties accepted that without assurances of the Jordanian Government there would have been a real risk of ill-treatment of the applicant, a high profile Islamist. In that connection, the Court observed that only in rare cases would the general situation in a country mean that no weight at all could be given to assurances it gave. More usually, the Court would assess the quality of the assurances given and whether in the light of the receiving State’s practices they could be relied upon.

In the applicant’s case, the UK and Jordanian Governments had made genuine efforts to obtain and provide transparent and detailed assurances to ensure that he would not be ill-treated upon his return to Jordan. The MOU reached as a result of those efforts was superior in both its detail and formality to any assurances previously examined by the Court. Furthermore, the assurances had been given in good faith and approved by the highest levels of Jordanian Government, whose bilateral relations with the UK had historically been very strong. The MOU clearly contemplated that the applicant would be deported to Jordan, where he would be detained and retried for the offences for which he had been convicted in absentia. The applicant’s high profile would likely make the Jordanian authorities careful to ensure his proper treatment, since any ill-treatment would not only have serious consequences on that country’s bilateral relationship with the UK. Finally, in accordance with the MOU, the applicant would be regularly visited by the Adaleh Centre, which would be capable of verifying that the assurances were respected. Consequently, the applicant’s return to Jordan would not expose him to a real risk of ill-treatment.

The Court also confirmed that Article 5 applied in expulsion cases and that a Contracting State would be in a violation of that provision if it removed an applicant to a State where he or she would be at a real risk of a flagrant breach of rights protected under that Article. However, a very high threshold applied in such cases. Under Jordanian law, the applicant would have to be brought to trial within fifty days from his being detained, which in the Court’s view fell far short of the length of detention required for a flagrant breach of Article 5.

The applicant alleged that, if returned to Jordan, his retrial would amount to a flagrant denial of justice because, inter alia, of the admission of evidence obtained by torture. The Court observed that a flagrant denial of justice went beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What was required was a breach of the principles of fair trial which was so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article. In that connection, it noted that admission of torture evidence would be manifestly contrary not only to Article 6 of the Convention, but also to the basic international-law standards of fair trial. It would render a trial immoral, illegal and entirely unreliable in its outcome. The admission of torture evidence in a criminal trial would therefore amount to a flagrant denial of justice. The incriminating statements in the applicant’s case had been made by two different witnesses, both of whom had been exposed to torture, the purpose of which could have only been to obtain information. Furthermore, the use of torture evidence in Jordan was widespread and the legal guarantees contained under Jordanian law seemed to have little practical value. While it would be open for the applicant to challenge the admissibility of the statements against him that had been obtained through torture, he would encounter substantial difficulties in trying to do that many years after the events and before the same court which routinely rejected such claims. Having provided concrete and compelling evidence that his co-defendants had been tortured into providing the case against him, and that such evidence would most likely be used in his retrial, the applicant had met the high burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan.

Outcome:

No violation of Article 3 of the Convention;

No violation of Article 3 taken in conjunction with Article 13 of the Convention;

No violation of Article 5 of the Convention;

A violation of Article 6 of the Convention on account of the real risk of the admission at the applicant’s retrial of evidence obtained by torture of third persons.

Observations/comments:

Third-party comments provided by Amnesty International, Human Rights Watch and JUSTICE, which had been given leave by the President of the Chamber to intervene in the written procedure.

Other sources:

UNCAT:

Agiza v. Sweden (communication no. 233/2003, decision of 20 May 2005)

Pelit v Azerbaijan, communication no. 281/2005 decision of 29 May 2007

Mohammed Alzery v. Sweden, CCPR/C/88/D/1416/2005,