Conor McCarthy is Visiting Fellow at the British Institute of International and Comparative Law.
The European Court of Human Rights has handed down its long-awaited judgment in the case of Othman (Abu Qatada) v. the United Kingdom which, despite the initial furore that is likely to surround it in the UK, is also a case of substantial legal significance. The judgment sheds light on the circumstances in which it may be permissible under the ECHR (“the Convention”) to expel an individual to a third state where the use of torture is prevalent on the basis of assurances against torture or ill-treatment. Significantly, the Court also lays down, in emphatic terms, principles as to the permissibility of expelling an individual to face trial in a third state where evidence obtained through torture may be used in trying that person.
The Applicant’s Background
Abu Qatada is a high-profile radical Islamic cleric considered by the United Kingdom to be a threat to its national security and who is sought by Jordanian authorities (and indeed authorities in a number of other countries) in connection with a series of terrorist offences. He arrived in the United Kingdom in 1993 when he was granted asylum, having fled from Jordan where he had been tortured in detention in 1988 and 1990-1991. However, as he is regarded as a threat to national security, the UK has sought to extradite him to Jordan.
Bilateral Assurances on Torture or Ill-Treatment
As regards the question of MOUs or diplomatic assurances, some background is helpful. Following the September 11 attacks in the United States the question of the deportation of terrorist suspects, considered a threat to UK national security, to countries where they may face a risk of torture moved high on the political agenda. In 2001 the UK Foreign and Commonwealth Office advised the government that Article 3 of the Convention precluded the deportation of terrorist suspects to Jordan. However, in 2003 a Government review of the possibility of removing such barriers to removal was conducted and it was proposed that certain key countries, including Jordan, could be approached to determine whether they would be willing and able to provide assurances to guarantee that potential deportees would not be subjected to torture or inhuman and degrading treatment. Following this, the United Kingdom’s Foreign Secretary agreed that seeking specific and credible assurances from foreign governments, in the form of Memoranda of Understanding (“MOU”), could be used to enable the deportation of certain individuals from the United Kingdom and in 2003 the British Embassy in Oman were instructed to seek such assurances from the Jordanian government.
Various negotiations ensued and a MOU was agreed between the United Kingdom and Jordan in 2005. On its face, the MOU provided that a receiving state would respect its obligations under international human rights law with regard to the treatment of persons returned under the MOU. In addition, it was specified that if a returned person was detained within three years of his date of return “he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities”. The MOU also specified that the receiving state will not impede consular access to the sending state by a person deported under the MOU.
Torture and the 2005 British-Jordanian Memorandum of Understanding
Addressing the facts of the case the Court found that the arrangements entered into between Jordan and the United Kingdom as part of the MOU did provide sufficient safeguards against torture or inhuman and degrading treatment and that, as a result, Article 3, ECHR would not be violated were the applicant to be deported to Jordan.
In assessing whether the assurances would provide adequate protection for a deported individual the Court held that a “preliminary question is whether the general human rights situation in the receiving State excludes accepting any assurances whatsoever”, but it immediately added that “it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances”. Moreover, applying its previous case law in Saadi v. United Kingdom stated that (paragraph 187):
Assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time.
As regards the practice of torture in Jordan, the Court observed that “the picture painted by the reports of United Nations bodies and NGOs of torture in Jordanian prisons is as consistent as it is disturbing. Whatever progress Jordan may have made, torture remains, in the words of the United Nations Committee Against Torture, ‘widespread and routine’…” (paragraph 191).
However, the existence of a widespread and routine practice of torture did not, the Court found, preclude the United Kingdom from seeking to rely on assurances as to an individual’s treatment to enable that individual’s deportation to that a country where torture was systematically practiced. In particular the Court held (at paragraph 194) that it,
does not consider that the general human rights situation in Jordan excludes accepting any assurances whatsoever from the Jordanian Government. Instead, the Court considers the United Kingdom and Jordanian Governments have made genuine efforts to obtain and provide transparent and detailed assurances to ensure that the applicant will not be ill-treated upon return to Jordan.
It further noted that it has never laid down an “an absolute rule that a State which does not comply with multilateral obligations cannot be relied on to comply with bilateral assurances” (paragraph 193). Thus, the UK was entitled to rely on bilateral assurances from Jordan notwithstanding a systematic failure to comply with its obligations under other binding international instruments including the Convention Against Torture. Failure to adhere to such obligations was merely a factor to be considered in the mix in assessing whether assurances provide sufficient protection. After all, the Court held, “it would be paradoxical if the very fact of having to seek assurances meant one could not rely on them”.
This position appears to contrast with that advocated by the UN Committee Against Torture which, in its 2006 concluding observations on the United States of America, recommended that diplomatic assurances should only be relied upon with regard to States which do not systematically violate UN CAT’s provisions. Indeed, given that the ECHR itself found that torture was a “widespread and routine” practice in Jordan and that, notwithstanding this, weight could still be placed on Jordanian assurances, it is hard to envisage a case where no weight, however, slight could be placed on the assurances of a state even one whose officials consistently or systematically violated the prohibition on torture. This is likely to be regarded as a controversial aspect of the Court’s judgment.
Nevertheless, it was against the backdrop of widespread and routine torture found to take place in Jordan that the Court considered whether the assurances contained in the MOU provided sufficient safeguards that that applicant would not face treatment incompatible with Article 3 should he be returned. The Court held that assurances must be viewed in the context in which they were given, noting (i) the strength of the bilateral relationship between the UK and Jordan (ii) the importance of the MOU to that relationship (iii) that the assurances were provided at the highest levels of the Jordanian government by individuals with power to bind that government, having the express approval of the Jordanian King. Furthermore, the Court found that the applicant’s high profile meant it was more likely that Jordanian authorities would be careful in how he was treated. The Court was not, however, entirely uncritical of the MOU noting that “it would have been considerably strengthened if it had contained a requirement that the applicant be brought within a short, defined period after his arrest before a civilian judge, as opposed to a military prosecutor”, given the risk of ill treatment during the first days of a detainee’s imprisonment. Despite this criticism on the basis of all of the factors identified above the Court was satisfied that the assurances from Jordan provided adequate protection for the applicant and that, if deported, he would not face treatment incompatible with Article 3, ECHR.
Extradition, Torture and the Concept of the “Flagrant Denial of Justice”
The aspect of the judgment of the greatest legal moment concerns the development it represented in the Court’s jurisprudence regarding the permissibility of extraditing an individual to face trial in circumstances where evidence may be adduced that has been obtained through torture. It has been an established, if as yet conceptually under-developed aspect of the case law of the ECtHR, that the Article 6 right to a fair trial may be violated where an individual being extradited risks facing a trial constituting a “flagrant denial of justice”. The Court’s jurisprudence on this issue dates back to the famous case of Soering v. the United Kingdom. However, in the 22 years since Soering v. United Kingdom the Court has never found that an expulsion would violate Article 6. Othman (Abu Qatada) v. the United Kingdom gave the Court a valuable opportunity to develop more fully its jurisprudence on the question of what constitutes a “flagrant denial of justice”. The Court held that the term is synonymous with a trial process which is “manifestly contrary to the provisions of Article 6 or the principles embodied therein”. Of concern here were not mere procedural flaws or defects but a matter going to the heart of the right to a fair trial.
The use of evidence obtained by torture, the Court emphatically held, was such a matter. Adopting language of remarkable force (in the broad scheme of judicial pronouncements by the ECtHR) the Court held (at paragraph 267) that:
The Court considers that the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial.
As regards the use of evidence obtained through inhuman and degrading treatment, although it did not decide the point, the Court did “not exclude that similar considerations may apply in respect of evidence obtained by other forms of ill-treatment which fall short of torture”.
The Othman case was not an easy one for the Court, not least given the wider political backdrop in the United Kingdom of the ongoing, high-profile (and at times stultifying) debate concerning the role of the ECHR in the United Kingdom’s domestic legal system. It is also a case in which some very difficult ethical and moral questions underpinned the various legal principles in play. For the different sides of the debate on the prevention of torture and the use to which its progeny may be put the decision is mixed. For the Government, it is clear that there are now few countries, however bad their human rights record may be, which are so bad that assurances cannot be sought to enable deportation, subject to sufficiently rigorous safeguards being put in place to prevent ill-treatment. This approach is perhaps not altogether surprising given the Court’s previous jurisprudence on the issue. The greater significance in the judgment is perhaps that for the first time in 22 years, since the landmark case of Soering v. the United Kingdom, the Court has held that the expulsion of an individual would violate Article 6 of the Convention. It remains to be seen whether, if the case goes before the Grand Chamber of the Court, the findings of the Chamber will be left undisturbed. But as things stand the judgment may well come to be seen as a milestone in the development of the Court’s jurisprudence on torture. Time will tell.