On behalf of my colleague Prof. Jennifer Laurin, I’m very happy to draw attention to an event coming up here in Austin:
nationalsecuritylaw upcoming event: UT Law conference on Civil Rights Litigation Since 9/11 (register by Jan. 27)January 17, 2012
nationalsecuritylaw updated time for event announced last week: Teleforum with Greg McNeal on Collateral Damage in Combat Operations — Now at 3:00 p.m. easternJanuary 17, 2012
Note the updated time – this event now will take place at 3pm today (eastern)
* Othman (Abu Qatada) v. United Kingdom (E. Ct. Hum. Rts Jan. 17, 2012)
The European Court of Human Rights has issued a ruling to the effect that the UK may not deport Omar Othman (better known as Abu Qatada, an extremist preacher long linked to al Qaeda) to Jordan, where he would face criminal charges. In brief, the court reached the following conclusions:
1) The proposed deportation did not present an undue risk of torture (note that paragraphs 186 -189 provide a very interesting discussion of diplomatic assurances in this context)
2) The proposed deportation was not problematic in that the UK had relied on ex parte evidence in the course of assessing the diplomatic assurances Jordan had provided
3) The proposed deportation was not problematic in that Othman was at risk of up to 50 days of incommunicado detention
4) The proposed detention WAS problematic, in contrast, in that there was a “real risk” that evidence obtained via torture (of others) would be used and admitted against Othman. The full text of the Court’s merits ruling on this last point is reprinted below:
1. General principles
a. The “flagrant denial of justice” test
258. It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. That principle was first set out in Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161 and has been subsequently confirmed by the Court in a number of cases (see, inter alia, Mamatkulov and Askarov, cited above, §§ 90 and 91; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 149, ECHR 2010-…).
259. In the Court’s case-law, the term “flagrant denial of justice” has been synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein (Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006-II; Stoichkov, cited above, § 56, Drozd and Janousek cited above, § 110). Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included:
– conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge (Einhorn, cited above, § 33; Sejdovic, cited above, § 84; Stoichkov, cited above, § 56);
– a trial which is summary in nature and conducted with a total disregard for the rights of the defence (Bader and Kanbor, cited above, § 47);
– detention without any access to an independent and impartial tribunal to have the legality the detention reviewed (Al-Moayad, cited above, § 101);
– deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country (ibid.).
260. It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact, when taken with the examples given in the preceding paragraph, serves to underline the Court’s view that “flagrant denial of justice” is a stringent test of unfairness. A flagrant denial of justice goes 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 is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.
261. In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see, mutatis mutandis, Saadi v. Italy, cited above § 129).
262. Finally, given the facts of the present case, the Court does not consider it necessary to determine whether a flagrant denial of justice only arises when the trial in question would have serious consequences for the applicant. It is common ground in the present case that the sentences which have already been passed on the applicant in absentia, and to which he would be exposed on any retrial, are substantial terms of imprisonment.
b. Does the admission of evidence obtained by torture amount to a flagrant denial of justice?
263. The Court agrees with the Court of Appeal that the central issue in the present case is the real risk that evidence obtained by torture of third persons will be admitted at the applicant’s retrial. Accordingly, it is appropriate to consider at the outset whether the use at trial of evidence obtained by torture would amount to a flagrant denial of justice. In common with the Court of Appeal (see paragraph 51 above), the Court considers that it would.
264. International law, like the common law before it, has declared its unequivocal opposition to the admission of torture evidence. There are powerful legal and moral reasons why it has done so.
It is true, as Lord Phillips observed in the House of Lords’ judgment in the present case, that one of the reasons for the prohibition is that States must stand firm against torture by excluding the evidence it produces. Indeed, as the Court found in Jalloh, cited above, § 105, admitting evidence obtained by torture would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe.
There are, however, further and equally compelling reasons for the exclusion of torture evidence. As Lord Bingham observed in A and others no. 2, § 52, torture evidence is excluded because it is “unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.” The Court agrees with these reasons: it has already found that statements obtained in violation of Article 3 are intrinsically unreliable (Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). Indeed, experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture.
More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.
265. These reasons underscore the primacy given to the prohibition on torture evidence in the Convention system and international law. For the Convention system, in its recent judgment in Gäfgen v. Germany [GC], no. 22978/05, §§ 165-167, ECHR 2010-…, the Court reiterated that particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. It observed:
“The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction.
Accordingly, the Court has found in respect of confessions, as such, that the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings rendered the proceedings as a whole unfair. This finding applied irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction.
As to the use at the trial of real evidence obtained as a direct result of ill-treatment in breach of Article 3, the Court has considered that incriminating real evidence obtained as a result of acts of violence, at least if those acts had to be characterised as torture, should never be relied on as proof of the victim’s guilt, irrespective of its probative value (references omitted)”.
Gäfgen reflects the clear, constant and unequivocal position of this Court in respect of torture evidence. It confirms what the Court of Appeal in the present case had already appreciated: in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental. Gäfgen also confirms the Court of Appeal’s view that there is a crucial difference between a breach of Article 6 because of the admission of torture evidence and breaches of Article 6 that are based simply on defects in the trial process or in the composition of the trial court (see paragraph 45–49 of the Court of Appeal’s judgment, quoted at paragraph 51 above).
266. Strong support for that view is found in international law. Few international norms relating to the right to a trial are more fundamental than the exclusion of evidence obtained by torture. There are few international treaties which command as widespread support as UNCAT. One hundred and forty-nine States are party to its provisions, including all Member States of the Council of Europe (see paragraph 125 above). UNCAT reflects the clear will of the international community to further entrench the ius cogens prohibition on torture by taking a series of measures to eradicate torture and remove all incentive for its practice. Foremost among UNCAT’s provisions is Article 15, which prohibits, in near absolute terms, the admission of torture evidence. It imposes a clear obligation on States. As the United Nations Committee Against Torture has made clear, Article 15 is broad in scope. It has been interpreted as applying to any proceedings, including, for instance, extradition proceedings (P.E. v. France; G.K. v. Switzerland; and Irastorza Dorronsoro: see paragraphs 130 and 132 above). P.E. and G.K. also show that Article 15 applies to “any statement” which is established to have been made as a result of torture, not only those made by the accused (see also, in this respect Harutyunyan v. Armenia, no. 36549/03, § 59, ECHR 2007-VIII and Mthembu v. The State, case no. 379/2007,  ZASCA 51, quoted in Gäfgen, cited above, § 74). Indeed, the only exception to the prohibition that Article 15 allows is in proceedings against a person accused of torture.
267. For the foregoing reasons, 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. 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. However, on the facts of the present case (see paragraphs 269–271 below), it is not necessary to decide this question.
2. The applicant’s case
268. The applicant has alleged that his retrial would amount to a flagrant denial of justice because of a number of factors, including the absence of a lawyer during interrogation, his notoriety and the composition of the State Security Court (see paragraph 248 above). However, as the Court has observed, the central issue in the case is the admission of torture evidence. Accordingly, it will first examine this complaint.
a. Evidence obtained by torture
269. The incriminating statements against the applicant were made by Al-Hamasher in the Reform and Challenge Trial and Abu Hawsher in the millennium conspiracy trial (see paragraphs 9 –20 above). SIAC found that there was at least a very real risk that these incriminating statements were obtained as a result of treatment by the GID which breached Article 3; it may or may not have amounted to torture (see paragraph 420 of its determination, quoted at paragraph 45 above).
270. It is unclear from its determination why SIAC felt unable to reach a clear conclusion as to whether the ill-treatment amounted to torture. The precise allegation made by Abu Hawsher is that he was beaten on the soles of his feet to the stage where the skin fell off every time he bathed (see paragraph 103 above). The scarring on Al-Hamasher is consistent with the same form of ill-treatment (see paragraph 102 above). The purposes of that ill-treatment, if it occurred, could only have been to obtain information or confessions from them. Moreover, beating on the soles of the feet, more commonly known as bastinado, falanga or falaka, is a practice which has been considered by the Court. Its infliction causes severe pain and suffering to the victim and, when its purpose has been to punish or to obtain a confession, the Court has had no hesitation in characterising it as torture (see, among many authorities, Salman v. Turkey [GC], no. 21986/93, §§ 114 and 115, ECHR 2000-VII; Valeriu and Nicolae Roşca v. Moldova, no. 41704/02, § 64, 20 October 2009 and further references therein; Diri v. Turkey, no. 68351/01, §§ 42–46, 31 July 2007; Mammadov v. Azerbaijan, no. 34445/04, §§ 68 and 69, 11 January 2007). Consequently, there is every reason to conclude that, if Abu Hawsher and Al-Hamasher were ill-treated in the way they allege, their ill-treatment amounted to torture.
271. This conclusion means the remaining two issues which the Court must consider are: (i) whether a real risk of the admission of torture evidence is sufficient; and (ii) if so, whether a flagrant denial of justice would arise in this case.
i. Does a real risk of the admission of torture evidence suffice?
272. In determining this question, the Court would begin by noting that the evidence before it that Abu Hawsher and Al-Hamasher were tortured is even more compelling than at the time of SIAC’s determination. The report of Mr Al-Khalili and Mr Najdawi is, for the most part, balanced and objective. It frankly assesses the strengths and weaknesses of the Jordanian State Security Court system and recognises the GID’s attempts to extract confessions from suspects. However, the main weakness in the report is that its authors do not examine for themselves the allegations of torture which were made by the applicant’s co-defendants; the report merely records the conclusions of the State Security Court at each trial that the co-defendants were not tortured. Ms Refahi, on the other hand, travelled twice to Jordan to interview the lawyers and defendants at the original trials. Her two statements give detailed accounts of her interviews and record, in clear and specific terms, the allegations of torture made by the defendants. There is every reason to prefer her evidence on this point to the more generalised conclusions of Mr Al-Khalili and Mr Najdawi. Furthermore, in the millennium conspiracy trial, some corroboration for Abu Hawsher’s allegations must be found in Amnesty International’s report of 2006 which sets out its findings that four of the defendants, including Abu Hawsher were tortured. The allegations of ill-treatment of one co-defendant, Ra-ed Hijazi are particularly convincing, not least because several witnesses were reported to have seen him propped up by two guards at the crime scene reconstruction and, as recorded in Ms Peirce’s statement, his treatment appears to have been the subject of a diplomatic protest by the United States (see paragraphs 103 and 114 above). Finally, some reliance must be placed on the fact that torture is widespread and routine in Jordan. If anything, it was worse when the applicant’s co-defendants were detained and interrogated. The systemic nature of torture by the GID (both then and now) can only provide further corroboration for the specific and detailed allegations which were made by Abu Hawsher and Al-Hamasher.
273. However, even accepting that there is still only a real risk that the evidence against the applicant was obtained by torture, for the following reasons, the Court considers it would be unfair to impose any higher burden of proof on him.
274. First, the Court does not consider that the balance of probabilities test, as applied by the majority of the House of Lords in A. and Others (no. 2), is appropriate in this context. That case concerned proceedings before SIAC to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. Those proceedings were very different from criminal proceedings where, as in the present case, a defendant might face a very long sentence of imprisonment if convicted. In any event, the majority of the House of Lords in A and others (no. 2) found that the balance of probabilities test was for SIAC itself to apply: an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture. Therefore, the Court does not regard A and others (no. 2) as authority for the general proposition that, subject to a balance of probabilities test, evidence alleged to have been obtained by torture would be admissible in legal proceedings in the United Kingdom, least of all in criminal proceedings (see, section 76(2) of the Police and Criminal Evidence Act 1984 and R. v Mushtaq, paragraph 138 above).
275. Second, the Court does not consider that the Canadian and German case-law, which has been submitted by the Government (see paragraphs 133, 135, 139 and 140, and 153 above), provides any support for their position. In Singh, the parties agreed that the allegations had to be proved on a balance of probabilities; the standard of proof was not the subject of argument in that case. Mahjoub, a national security case involving material not disclosed to the appellant, followed the approach taken by the House of Lords in A and others (no. 2), an approach which the Court has found to be inappropriate in the present case. In re El Motassadeq, the Hamburg Court of Appeal was only able to consider reports of a general nature alleging the United States authorities had tortured terrorist suspects and, in any event, drew “neither incriminating nor exonerating conclusions” from evidence in question (see El Motassadeq v. Germany, cited above). In addition, it does not appear that the issue of the standard of proof which was applied by the Hamburg Court of Appeal was pursued on appeal to the Federal Court of Justice or Constitutional Court and it did not form part of El Motassadeq’s complaints to this Court. Finally, it is clear from the Düsseldorf Court of Appeal’s reasoning that it did not apply a balance of probabilities test to the requested person’s allegations. Instead, it sufficed that there was a real risk (konkrete Gefahr) that Turkey would not respect Article 15 of UNCAT; that there was reasonable evidence (begründete Anhaltspunkte) that the statements made by the co-defendants had been obtained by torture; and that there was a risk, substantiated by concrete evidence (durch konkrete Indizien belegte Gefahr), that the statements taken from the co-accused might be used in proceedings against the requested person in Turkey.
276. Third, and most importantly, due regard must be had to the special difficulties in proving allegations of torture. Torture is uniquely evil both for its barbarity and its corrupting effect on the criminal process. It is practiced in secret, often by experienced interrogators who are skilled at ensuring that it leaves no visible signs on the victim. All too frequently, those who are charged with ensuring that torture does not occur – courts, prosecutors and medical personnel – are complicit in its concealment. In a criminal justice system where the courts are independent of the executive, where cases are prosecuted impartially, and where allegations of torture are conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture. However, in a criminal justice system which is complicit in the very practices which it exists to prevent, such a standard of proof is wholly inappropriate.
277. The Jordanian State Security Court system is a case in point. Not only is torture widespread in Jordan, so too is the use of torture evidence by its courts. In its conclusions on Article 15 of UNCAT, the Committee Against Torture expressed its concern at reports that the use of forced confessions in courts was widespread (see paragraph 107 above). The Special Rapporteur has described a system where the “presumption of innocence is illusory” and “primacy is placed on obtaining confessions” (see paragraph 110 above). The reports of Amnesty International and Human Rights Watch support this view. Amnesty International has considered the State Security Court to be “largely supine” in the face of torture allegations, despite, in the ten years prior to 2005, one hundred defendants alleging before the State Security Court that they had been tortured into making confessions and similar allegations being made in fourteen such cases in 2005 alone (see paragraph 113 above). Human Rights Watch’s 2006 Report depicts a system in which detainees are shuttled back and forth between GID officials and the Public Prosecutor until confessions are obtained in an acceptable form (see paragraph 116 above). Finally, the NCHR has, in successive reports, expressed its own concerns about the manner in which statements obtained by coercion become evidence in Jordanian courts (see paragraphs 121 and 122 above).
278. The Court recognises that Jordanian law provides a number of guarantees to defendants in State Security Court cases. The use of evidence obtained by torture is prohibited. The burden is on the prosecution to establish that confessions made to the GID have not been procured by the use of torture and it is only in relation to confessions made before the Public Prosecutor that the burden of proof of torture is imposed on the defendant. However, in the light of the evidence summarised in the preceding paragraph, the Court is unconvinced that these legal guarantees have any real practical value. For instance, if a defendant fails to prove that the prosecution was implicated in obtaining an involuntary confession, that confession is admissible under Jordanian law regardless of any prior acts of ill-treatment or other misconduct by the GID. This is a troubling distinction for Jordanian law to make, given the closeness of the Public Prosecutor and the GID. Furthermore, while the State Security Court may have the power to exclude evidence obtained by torture, it has shown little readiness to use that power. Instead, the thoroughness of investigations by the State Security Court into the allegations of torture is at best questionable. The lack of independence of the State Security Court assumes considerable importance in this respect. As SIAC observed (at paragraph 447 of its determination, quoted at paragraph 46 above) the background to the judges of the State Security Court:
“[M]ay well make them sceptical about allegations of abuse by the GID affecting statements made to the Prosecutor. They may instinctively share the view that allegations of ill-treatment are a routine part of a defence case to excuse the incrimination of others. The legal framework is poorly geared to detecting and acting upon allegations of abuse. The way in which it approaches the admission of evidence, on the material we have, shows no careful scrutiny of potentially tainted evidence.”
279. Thus, while, on any retrial of the applicant, it would undoubtedly be open to him to challenge the admissibility of Abu Hawsher and Al-Hamasher’s statements and to call evidence to support this, the difficulties confronting him in trying to do so many years after the event and before the same court which has already rejected such a claim (and routinely rejects all such claims) are very substantial indeed.
280. Therefore, the Court considers that, given the absence of clear evidence of a proper and effective examination of Abu Hawsher and Al-Hamasher’s allegations by the State Security Court, the applicant has discharged the burden that could be fairly imposed on him of establishing the evidence against him was obtained by torture.
ii. Would there be a flagrant denial of justice in this case?
281. SIAC found that there was a high probability that Abu Hawsher and Al-Hamasher’s evidence incriminating the applicant would be admitted at the retrial and that this evidence would be of considerable, perhaps decisive, importance against him (see paragraph 45 above). The Court agrees with these conclusions.
282. The Court has found that a flagrant denial of justice will arise when evidence obtained by torture is admitted in criminal proceedings. The applicant has demonstrated that there is a real risk that Abu Hawsher and Al-Hamasher were tortured into providing evidence against him and the Court has found that no higher burden of proof can fairly be imposed upon him. Having regard to these conclusions, the Court, in agreement with the Court of Appeal, finds that there is a real risk that the applicant’s retrial would amount to a flagrant denial of justice.
283. The Court would add that it is conscious that the Grand Chamber did not find that the test had been met in Mamatkulov and Askarov, a factor which was of some importance to the House of Lords’ conclusion that there would be no flagrant breach in the present case.
284. However, as the applicant has submitted, the focus of the Grand Chamber’s judgment in the Mamatkulov and Askarov case was on the binding effect of Rule 39 indications rather than on the substantive issues raised in that case under Article 6. Second, the complaint made by the applicants in that case of a violation of Article 6 was of a general and unspecific nature, the applicants alleging that at the time of their extradition they had no prospect of receiving a fair trial in Uzbekistan. Third, the Court found that, though in the light of the information available at the time of the applicants’ extradition, there may have been reasons for doubting that they would receive a fair trial in Uzbekistan, there was not sufficient evidence to show that any irregularities in the trial were liable to constitute a flagrant denial of justice; the fact that Court had been prevented from obtaining additional information to assist it in its assessment of whether there was such a real risk by Turkey ‘s failure to comply with Rule 39 was seen by the Court as a matter to be examined with respect to the complaint under Article 34 of the Convention.
285. In the present case, the situation is different. Extensive evidence was presented by the parties in respect of the applicant’s re-trial in Jordan and thoroughly examined by the domestic courts. Moreover, in the course of the proceedings before this Court, the applicant has presented further concrete and compelling evidence that his co-defendants were tortured into providing the case against him. He has also shown that the Jordanian State Security Court has proved itself to be incapable of properly investigating allegations of torture and excluding torture evidence, as Article 15 of UNCAT requires it to do. His is not the general and unspecific complaint that was made in Mamatkulov and Askarov; instead, it is a sustained and well-founded attack on a State Security Court system that will try him in breach of one of the most fundamental norms of international criminal justice, the prohibition on the use of evidence obtained by torture. In those circumstances, and contrary to the applicants in Mamatkulov and Askarov, the present applicant has met the burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan.
b. The applicant’s remaining Article 6 complaints
286. The Court considers that the foregoing conclusion makes it unnecessary (save as above) to examine the applicant’s complaints relating to the absence of a lawyer in interrogation, the prejudicial consequences of his notoriety, the composition of the State Security Court, and the aggravating nature of the length of sentence he would face if convicted.
c. Overall conclusion on Article 6
287. The Court finds that the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention.