Abu Qatada v United Kingdom  ECHR 56 (17 January 2012) Summary
The European Court of Human Rights was asked to consider whether the Applicant's rights under articles 3 (torture), 5 (liberty and security), 6 (fair trial) and 13 (effective remedy) of the European Convention on Human Rights would be breached if he was deported to Jordan where he faced criminal proceedings. The Court held that there would be a violation of article 6 as there was a real risk that evidence obtained by torture would be used in a retrial. This is the first instance in which the Court has found that an expulsion would constitute a violation of article 6.
The Applicant, Omar Othman, otherwise know as Abu Qatada, is a high-profile Jordanian national described by the UK Court of Appeal as having 'clear links to many terrorist groups and individuals'. Following his arrival in the UK in 1993, he was granted asylum on the basis that he had been repeatedly tortured by the Jordanian authorities.
The Applicant was convicted in absentia twice in Jordan in 1999 and 2000 on charges of conspiracy to commit terrorist activities. In both cases, the Applicant's co-defendants complained that the Jordanian authorities had used torture to extract evidence.
On 23 October 2002, British authorities arrested and detained the Applicant under then-current anti-terrorism laws. He was released from detention on very strict bail conditions in March 2005 following the repeal of those laws.
The UK Government negotiated with Jordan a Memorandum of Understanding on the treatment of deportees, to remove barriers to the deportation of terrorist suspects to Jordan imposed by the Convention. On 11 August 2005, one day after the MOU was signed, the Applicant was served with a notice of intention to deport. He appealed the notice to the Special Immigration Appeals Commission arguing that it was incompatible with various provisions of the Convention, and, in particular, that it exposed him to a 'real risk of torture'. SIAC dismissed the appeal, finding that the MOU provided sufficient assurances against torture and ill-treatment.
The Applicant then appealed the Commission’s decision to the Court of Appeal with partial success. The Court of Appeal found that there was a real risk that the Applicant would be retried on the two charges of conspiracy to commit terrorist activities and that there would be 'flagrant denial of justice' by way of statements obtained through torture or ill-treatment being admitted. The House of Lords, on appeal, reversed that decision. It found that the risk that evidence obtained by torture or ill-treatment would be admitted in any retrial would not amount to a flagrant denial of justice.
The Applicant appealed the House of Lords' decision to the European Court of Human Rights.
Arguments and decision
The Applicant alleged that the UK had or would violate his rights under articles 3 (torture), 5 (liberty and security), 6 (fair trial) and 13 (effective remedy) of the Convention it if it deported him to Jordan. The Court found that only the allegation related to article 6 was sustained.
Article 3 - torture
The Applicant alleged that the UK would infringe the protections against torture if it deported him to Jordan because he would be at real risk of being subjected to torture or ill-treatment.
The Court observed that torture is routine in Jordan and that, without assurances from the Jordanian Government, the Applicant would be at real risk of being subjected to torture or ill-treatment. However, it found that, despite some shortcomings, the assurances given under the MOU were sufficient to mitigate the possibility that the Applicant would be tortured. It stated that:
the general human rights situation in Jordan [does not exclude] accepting any assurances whatsoever from the Jordanian Government' and that 'the United Kingdom and Jordanian Governments … made genuine efforts to obtain and provide transparent and detailed assurances to ensure that the applicant will not be ill-treated upon his return to Jordan.
Article 13 – effective remedy
The Applicant alleged that the UK had infringed his right to an effective remedy, in conjunction with his right under article 3, because the Commission relied on information not disclosed to him in order to decide his case. The Court found that the process and procedures adopted by the Commission were sufficient to mitigate any harm caused by reliance on information not disclosed to the Applicant.
Article 5 - liberty and security
The Applicant alleged that the UK would infringe his right to liberty and security if it deported him to Jordan due to the possibility of incommunicado detention. The Court found that the Jordanian Government had clearly indicated that it would bring the applicant to trial within 50 days of his detainment, and that 50 days of detention falls well short of the length of detention required for a flagrant denial of the right to liberty.
Article 6 – fair trial
The Applicant alleged that the UK would infringe this right if it deported him to Jordan because he would be at real risk of a flagrant denial of justice.
The Court affirmed that an issue may be raised under article 6 in a deportation case if the deportee risks 'suffering a flagrant denial of justice in the requesting country'. The Court found that the admission of evidence obtained by torture is 'manifestly contrary… to the most basic international standards of a fair trial [and] would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome', and, therefore, would amount to a flagrant denial of justice. The Court concluded that there was a 'real risk' that evidence obtained by torture from the Applicant's co-accused during the 1999 and 2000 trials would be used against the Applicant in any retrial, and, in turn, that the Applicant's article 6 complaint was sustained. In doing so, it stated that it would be unfair to require the Applicant to prove anything more than a 'real risk' of torture given the 'special difficulties in proving allegations of torture'.
Significance and relevance
The decision in this case is significant because it represents the first time that the Court has found that an expulsion would constitute a violation of article 6. Nonetheless, Amnesty International had criticised the decision as it leaves open the possibility of deporting persons on the basis of diplomatic assurances.
The decision has some relevance for Australian decision-makers. Under sections 200 and 201 of the Migration Act 1958 (Cth), the Minister for Immigration and Citizenship may order the deportation of some non-citizens who are convicted of crimes. The Minister has instructed his delegates to consider Australia's international obligations, including those created by the International Covenant on Civil and Political Rights when exercising this power. As article 6(1) of the Convention very closely resembles article 14(1) of the Covenant, the decision in this case assists Australian decision-makers exercising the Minister's power. More specifically, it suggests that a decision-maker should not order the deportation of a person where there is a real risk that that person will face a criminal trial in the receiving country in which evidence obtained by torture will be admitted.
The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2012/56.html
Andrew Wilcock is a Lawyer at Allens Arthur Robinson