A. Introduction
On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v United Kingdom.Footnote 1 Abu Qatada, a radical Muslim cleric once described as ‘Osama bin Laden's right-hand man in Europe’, was convicted in absentia in Jordan for various terrorist offences.Footnote 2 He alleges, however, that part of the evidence against him had been obtained under torture. In 1994 he was granted refugee status and permitted to remain in the United Kingdom (UK) temporarily. Qatada later applied for indefinite leave to stay. While his application was pending, he was arrested in October 2002 and detained without charge or trial under the now-repealed Part 4 of the Anti-terrorism, Crime and Security Act 2001. In March 2005 he was released from detention and put under a ‘control order’ under the Prevention of Terrorism Act 2005. A few months later, the UK government sought to deport Qatada to his native Jordan, having first concluded a Memorandum of Understanding (MoU) with the Jordanian government that he would not be subjected to torture or ill-treatment contrary to Article 3 of the European Convention on Human Rights (ECHR). The deportation order was challenged before English courts, but ultimately upheld by the House of Lords in RB (FC) and Another v Secretary of State for the Home Department and OO v Secretary of State for the Home Department in 2009.Footnote 3 In contrast, the ECtHR ruled unanimously that the UK could not lawfully deport Qatada to Jordan. The decision was criticized by Home Secretary Theresa May as ‘unacceptable’ and predictably led to several Conservative backbenchers in the House of Commons calling on the government to withdraw from the ECHR.Footnote 4
The ECtHR's decision was long anticipated for two main reasons: First, it was unclear whether the diplomatic assurances given by Jordan were sufficient to remove any real risk of ill-treatment of Abu Qatada under Article 3 of the ECHR. The case thus presented the first opportunity for Strasbourg to consider the UK practice of concluding MoUs with Middle Eastern and North African governments to permit the deportation of terrorism suspects based on promises from the receiving state that deportees would be treated humanely. Second, it was unclear whether, and to what extent, a Convention state could deport an individual to a country that is not bound by the ECHR where the individual concerned faces a trial that would fall short of the standards set by Article 6 of the ECHR (right to a fair trial). This article will examine how both issues were dealt with by the ECtHR. It will first consider the controversial nature of diplomatic assurances and examine the application of the principle of non-refoulement in the context of the cross-border transfer of persons suspected of terrorism or other behaviour considered a risk to national security. Against this background, the article will then analyse the Court's finding that Abu Qatada's deportation to Jordan, with assurances, would not violate Article 3 of the ECHR. It will subsequently review the Court's second key finding that a deportation of Qatada would nonetheless be in violation of Article 6 of the ECHR given that there was real risk that torture evidence would be admitted at his retrial in Jordan. The admission of such evidence, the Court ruled, would amount to a flagrant denial of justice. The article will conclude with some observations on the overall significance of the Qatada decision more generally.
B. Article 3, Non-Refoulement and Diplomatic Assurances
1. The controversial nature of diplomatic assurances
States have increasingly been facing the problem of how to deal with foreign terrorism suspects and other persons considered to be a risk to national security who they have not been able to successfully prosecute—often the evidence against the person is intelligence evidence that cannot be used in criminal proceedings—but who cannot be deported due to the risk of torture or ill-treatment in their country of origin. To escape this dilemma, governments have increasingly relied on obtaining diplomatic assurances from states willing to receive terrorist suspects. The legality and effectiveness of this practice, however, is controversial because it engages states’ obligations not to render, transfer, send or return a person where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or ill-treatment. This prohibition is generally referred to as the principle of non-refoulement.
In recent years, the UK and other countries have promoted the use of diplomatic assurances at home while also expending a great deal of time and energy at the regional and international levels to lobby for their legitimization.Footnote 5 Human rights organizations, on the other hand, have criticized this approach.Footnote 6 They argue that because diplomatic assurances are ‘unenforceable promises’, a country that breaches them is unlikely to experience any serious consequences if the assurances are violated.Footnote 7 They maintain, moreover, that in many instances it is practically impossible to ascertain whether a breach has occurred. Also, as Human Rights Watch has pointed out, neither the sending state nor the receiving state has any incentive to carry out such investigations seriously.Footnote 8 In fact, serious investigations may not only reveal human rights violations, but might complicate efforts to rely on assurances in the future. The legality of the use of diplomatic assurances has also received considerable attention in the academic debate.Footnote 9
2. The development of the principle of non-refoulement
While the principle of non-refoulement is contained in a number of international conventions, its development has primarily occurred through judicial and quasi-judicial interpretation.Footnote 10 In light of the absence of an explicit reference to non-refoulement in the ECHR, the ECtHR first developed the concept of an implied principle of non-refoulement in the Soering case of 1989.Footnote 11 This case concerned the extradition of a German national, Jens Soering, from the United Kingdom to the United States to face murder charges at a trial in Virginia which carried the death penalty. In an essentially unanimous decision, the Court held that an extradition of Soering to Virginia would violate Article 3 of the ECHR. It argued that the ‘death row phenomenon’—as the inevitable accompaniment of the death penalty—amounted to inhumane and degrading treatment and punishment.Footnote 12
A few years later, in 1996, the ECtHR, in Chahal v United Kingdom, held that the principle of non-refoulement did not only apply in extradition proceedings, but was equally absolute in expulsion cases.Footnote 13 The case involved an order for the deportation from the UK to India of Karamjit Singh Chahal, a Sikh activist and Indian citizen, for national security reasons. Chahal was a leading figure in the British Sikh community and had been detained under the Prevention of Terrorism (Temporary Provisions) Act 1984 on suspicion of involvement in a conspiracy to assassinate the Indian Prime Minister, Rajiv Gandhi, during an official visit to the UK. In Chahal, the Court also held that national security reasons could not be invoked to trump the non-refoulement obligation.Footnote 14 Moreover, the Court found that the diplomatic assurances from the Indian Government about Chahal's likely treatment, were he returned, did not sufficiently reduce the risk to him.Footnote 15 The Court's decision, however, was not unanimous. Seven of the nineteen judges submitted a partly dissenting opinion accepting the arguments advanced by the UK government that a balancing exercise was appropriate in terrorism cases, by which the degree of risk of ill-treatment was to be assessed on a case-by-case basis. They agreed with the majority that national security considerations could not be invoked to justify ill-treatment at the hands of a Convention state within its own jurisdiction and that in that sense the protection afforded by Article 3 of the ECHR was absolute in character. However, in cases of extra-territorial (or indirect) application of the ECHR, states could ‘legitimately strike a fair balance between, on the one hand, the nature of the threat to its national security interests if the person concerned were to remain and, on the other, the extent of the potential risk of ill-treatment of that person in the State of destination’.Footnote 16
3. Post-9/11 developments in domestic and international case law
In the post-9/11 era there has been a dramatic increase of cases where states have resorted to expelling persons considered to be unconducive to the public good for reasons of national security. In many cases states have relied on diplomatic assurances and claimed that these assurances satisfied their obligations under the non-refoulement principle. In other cases, states have claimed that the principle of non-refoulement was not absolute. Drawing on the dissenting opinions in Chahal, they have argued that the new security environment required ‘balancing’ the refoulement prohibition against national security interests. As these cases have notably influenced the ECtHR's approach in Qatada, they will be briefly discussed below.
a) Suresh v Canada
One of the first post-9/11 cases that addressed the issue of non-refoulement and national security was the Canadian case of Suresh.Footnote 17 Manickavasagam Suresh, a Tamil from Sri Lanka, fled to Canada in 1990 and was recognized as a refugee in 1991. In 1995 he applied for and was denied permanent residence status under provisions of the Immigration Act. The Minister of Citizenship and Immigration and the Solicitor General of Canada issued a certificate that denied Suresh's application on the basis of a Canadian Security Intelligence Service opinion that Suresh belonged to the Liberation Tigers of Tamil Elam. Suresh challenged the deportation order and brought the case to the Supreme Court where he sought an order striking down the provision in the Immigration Act that authorized the Minister to allow expulsion even in torture cases. One of the key arguments made was that this was a violation of section 12 of the Canadian Charter of Rights and Freedoms which guarantees that ‘everyone has the right not to be subjected to any cruel and unusual treatment or punishment’.
The Supreme Court denied this. In its decision the Court differentiated between Canada's international obligations on the one hand, and the provisions of the Canadian Charter on the other. Finding that ‘international treaty norms are not, strictly speaking, binding on Canada unless they have been incorporated into Canadian law by enactment’,Footnote 18 it affirmed that the standard by which the Immigration Act was to be assessed was the Canadian Charter and not international law. The Court held that Canadian jurisprudence did not suggest that Canada ‘may never deport a person to face treatment elsewhere that would be unconstitutional if imposed by Canada directly, on Canadian soil’Footnote 19 but rather that the ‘appropriate approach was essentially one of balancing’.Footnote 20 The Supreme Court thus adopted a similar approach to the one applied by the dissenting ECtHR judges in the Chahal decision.
b) Agiza v Sweden
The UN Committee Against Torture expressed concern about the Supreme Court's decision in its ‘Conclusions and Recommendations’ following the presentation of Canada's periodic report and lamented the ‘failure of the Supreme Court of Canada … to recognize at the level of domestic law the absolute nature of the protection of Article 3 of the Convention, which is not subject to any exception whatsoever’.Footnote 21 The Committee itself had to address the issue in the case of Agiza v Sweden.Footnote 22 This case was the first case of so-called ‘extraordinary rendition’ in the post-9/11 era to reach an international tribunal.Footnote 23
Ahmed Agiza, an Egyptian citizen, was arrested and allegedly tortured by Egyptian security police in 1982 because they suspected that his cousin had been involved in the assassination of President Anwar Sadat. In 1999, he was tried in absentia before an Egyptian military tribunal for alleged membership in the Egyptian Islamic Jihad and subsequently sentenced to 25 years imprisonment with hard labour and without the possibility of appeal. In early 2000 Agiza sought asylum in Sweden claiming that his removal to Egypt would expose him to the likelihood of persecution and torture (based on his terrorism conviction). The Swedish Migration Board held an inquiry into the security status of Agiza, in conjunction with the Swedish security agencies. Disregarding the security issues, the Board determined that Agiza ‘could be considered entitled to claim refugee status’Footnote 24 and forwarded the case to the government, which, under Swedish law, makes decisions regarding the balancing of the complainant's possible need for protection against the risk that person apparently poses to Swedish security or foreign relations. On 18 December 2001, the Swedish Government rejected Agiza's asylum application and ordered his immediate expulsion. His deportation was facilitated by the United States government, who provided an aircraft for the journey to Egypt.
The submissions in the Agiza case largely concerned factual disputes over whether Agiza had been tortured whilst in detention in Egypt following his deportation from Sweden. Agiza claimed that torture had taken place, whereas Sweden submitted evidence to the contrary. In particular, the Swedish government noted that, prior to expulsion, it had obtained a ‘guarantee’ from the Egyptian government that Agiza would not be subjected to ill-treatment upon his return and that Swedish embassy personnel would be allowed to visit him in prison. The Committee, however, found a violation of Article 3 of the Convention against Torture entailed in Agiza's deportation, based on ‘the consistent and widespread use of torture against detainees’ in Egypt, as well as the ‘particularly high’ risk of torture for ‘detainees held for political and security reasons’.Footnote 25 Moreover, the Committee held that ‘in this case the diplomatic assurances procured were insufficient to protect against the manifest risk of torture and were therefore unenforceable’.Footnote 26
c) Alzery v Sweden
A similar case was taken to the Human Rights Committee by Muhammad Alzery who was deported from Sweden on the same flight as Agiza.Footnote 27 Alzery had been harassed by the Egyptian police in the aftermath of the Sadat assassination and was among a large group of alleged militants who were permitted to leave Egypt in 1991. He travelled to Saudi Arabia and Syria before arriving in Sweden in 1999 where he requested asylum. In December 2001 his application was rejected and he was deported back to Egypt. As in the case of Agiza, the Swedish government sought assurances from Egypt that Alzery would not be subjected to torture or inhuman treatment, and that he would receive a fair trial.
In its decision, the Committee clarified that in determining the risk of ill-treatment, all relevant elements, including the general situation of human rights in a state had to be considered.Footnote 28 It further noted that the existence of diplomatic assurances, their content and the existence and implementation of enforcement mechanisms were all factual elements relevant to the overall determination of whether, in fact, a real risk of proscribed ill-treatment existed.Footnote 29 Applying these standards to the Alzery case, the Committee noted that Sweden itself had ‘conceded that there was a risk of ill-treatment that—without more—would have prevented the expulsion of the author consistent with its international human rights obligations’.Footnote 30 In fact, the Swedish government had ‘relied on the diplomatic assurances alone for its belief that the risk of proscribed ill-treatment was sufficiently reduced to avoid breaching the prohibition on refoulement’.Footnote 31 According to the Committee, these assurances, however, contained no mechanism for monitoring of their enforcement. Nor were any arrangements made outside the text of the assurances themselves which would have provided for effective implementation. The visits by Swedish embassy staff commenced five weeks after the return, ‘neglecting altogether a period of maximum exposure to risk of harm’.Footnote 32 Moreover, the mechanics of the visits that took place ‘failed to conform to key aspects of international good practice by not insisting on private access to the detainee and inclusion of appropriate medical and forensic expertise, even after substantial allegations of ill-treatment emerged’.Footnote 33 As a consequence, the Committee held that Alzery's expulsion amounted to a violation of Article 7 of the ICCPR as Sweden had ‘not shown that the diplomatic assurances procured were in fact sufficient in the present case to eliminate the risk of ill-treatment to a level consistent with the requirements of article 7 of the Covenant’.Footnote 34
d) Saadi v Italy
In 2008, the ECtHR itself had to consider the issue of non-refoulement and diplomatic assurances in the Saadi case.Footnote 35 Nassim Saadi, a Tunisian national and lawful resident of Italy, was subject to a deportation order from Italy, which proposed to transfer him to his native Tunisia, where he had been convicted in absentia of terrorism-related offences by a military court. Saadi claimed that the proposed deportation would constitute a violation of his Article 3 rights as there was a ‘real risk’ that he would be subjected to torture by the Tunisian authorities. Italy, on the other hand, joined by the UK as a third-party intervenor, claimed that the ECHR's standard, as outlined in the Chahal decision, needed to be amended and recast in the context of individuals who pose a particular danger to the community as a whole. This ‘real risk’ standard, so the argument ran, was not appropriate in the prevailing climate of an international terrorist threat. The UK, in particular, argued that a state needed to be entitled to take the danger to the public into account when the applicant was considered to be involved in terrorist activity.Footnote 36 It further argued that in such cases the applicant should be required to produce evidence showing a higher risk of exposure to prohibited treatment than was required by the Court in Chahal.
The Court, however, did not accept this argument and upheld the Chahal approach. It concluded that the argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back was ‘misconceived’.Footnote 37 The Court also confirmed that in order to determine whether there was a risk of ill-treatment it was necessary to examine the foreseeable consequences of sending Saadi to Tunisia, bearing in mind the general situation there and his personal circumstances.Footnote 38 As regards the general situation in a particular country, the Court reiterated that it attached importance to the information contained in recent reports from independent international human-rights-protection organizations such as Amnesty International, or governmental sources such as the human rights reports issued by the United States Department of State.Footnote 39 At the same time, it held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country did not in itself give rise to a breach of Article 3 of the ECHR.Footnote 40
In the case of Saadi, the Court found that there were substantial grounds for believing that there was a ‘real risk’ that the applicant would be subjected to treatment contrary to Article 3 of the ECHR if he were to be deported to Tunisia.Footnote 41 The Court then briefly considered the claim that a state's Article 3 obligations could be satisfied by means of diplomatic assurances from the receiving state. In the present case, the Italian government had asked the Tunisian government for diplomatic assurances that Saadi would not be subjected to ill-treatment. Nevertheless, the Tunisian authorities did not provide such assurances and confined their reply to outlining the domestic law applicable to Saadi which included the prohibition on torture as contained in the ‘relevant treaties and conventions’.Footnote 42 This was found to be unsatisfactory by the Court which held that ‘in a case where reliable sources report that prohibited treatment is either engaged in, or tolerated by, the received state, the mere existence of domestic prohibitions on torture and ill treatment is insufficient to ensure the adequate protection of an individual's Article 3 rights’.Footnote 43
4. The Qatada case before English courts in relation to Article 3 of the ECHR
Abu Qatada first challenged his deportation order before the Special Immigration Appeals Commission (SIAC) arguing, inter alia, that it was incompatible with Article 3 of the ECHR as he faced a real risk of ill-treatment in Jordan for a number of reasons. These included his high profile, the prospect of a retrial for the offences for which he had been convicted in absentia, lengthy interrogation and pre-trial detention as well as the risk of the death penalty and rendition to other countries, such as the United States. Qatada also referred to various sources attesting to Jordan's poor human rights record. The UK government did not contest this and acknowledged that it could not deport Qatada to Jordan, in conformity with its international obligations, in the absence of the measures contained in the MoU.Footnote 44 This MoU provided a number of assurances of compliance with international human rights standards, including ‘humane and proper’ treatment and the guarantee of fundamental due process rights. It also made provision that in cases where a returned person is arrested, detained or imprisoned within three years of the date of his/her return, he/she ‘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’.Footnote 45 The MoU further stipulated that ‘such visits will be permitted at least once a fortnight, and whether or not the returned person has been convicted, and will include the opportunity for private interviews with the returned person’.Footnote 46 The Adaleh Centre for Human Rights Studies in Jordan was subsequently nominated to act as a monitoring body. In sum, the arrangements provided in the MoU were more specific and comprehensive in scope than the assurances provided in the above-discussed cases of Agiza, Alzery and Saadi.
SIAC examined whether these arrangements could remove the real risk of ill-treatment. To this end, it drew on its own case law according to which four conditions had to be satisfied.Footnote 47 First, the terms of the assurances had to be such that, if fulfilled, the person returned would not be subjected to treatment contrary to Article 3. Second, the assurances had been given in good faith. Third, there had to be a sound objective basis for believing that assurances would be fulfilled. Fourth, the fulfilment of the assurances had to be capable of being verified. Applying these standards to the Qatada case, SIAC held that the measures as set out in the MoU were sufficient to remove the real risk of ill-treatment for several reasons. First, Qatada's high profile and the monitoring arrangements contained in the MoU would prevent any real risk of ill-treatment. Second, the MoU was supported at the highest levels of government in Jordan, and, as a consequence, it was likely that instructions would be given to Jordanian security agencies to treat Qatada in a humane and proper manner. SIAC also found that it was unlikely that the death penalty would be imposed at a possible retrial or that Qatada would be removed to a secret CIA facility in Jordan or elsewhere.
SIAC's findings in relation to Article 3 were subsequently challenged before the Court of Appeal.Footnote 48 Counsel for Abu Qatada submitted that, as a matter of principle, diplomatic assurances could not be relied upon where there was a pattern of human rights violations in the receiving state coupled with a culture of impunity for the state agents in the security service and the persons who perpetrated these violations. It was further submitted that in all the circumstances SIAC's reliance on the assurances that had been given was ‘irrational’.Footnote 49 The Court of Appeal, however, held that SIAC's decision was not open to attack as a matter of principle and also summarily dismissed the suggestion that SIAC's decision was irrational.Footnote 50 The House of Lords upheld the Court of Appeal judgments in this regard. Citing ECtHR case law, including the Saadi decision, the Lords did not ‘consider that these decisions establish a principle that assurances must eliminate all risk of inhuman treatment before they can be relied upon’.Footnote 51 They also confirmed that the only ground upon which SIAC's conclusions could be attacked on appeal was on questions of law.Footnote 52 However, they could not find any error in law in SIAC's findings, and, as a result, the irrationality challenge to SIAC's conclusions was dismissed.
5. The Qatada decision by the ECtHR in relation to Article 3 of the ECHR
The ECtHR emphasized that it was ‘acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence’ and that they ‘must be allowed to deport non-nationals whom they consider to be threats to national security’.Footnote 53 Nonetheless, it was ‘well-established’ that expulsion ‘may give rise to an issue under Article 3’.Footnote 54 It was not for the Court to ‘rule upon the propriety of seeking assurances, or to assess the long-term consequences of doing so’.Footnote 55 Rather, its only task was ‘to examine whether the assurances obtained in a particular cases are sufficient to remove any real risk of ill-treatment’.Footnote 56 Citing its own case law, the Court then outlined a number of criteria to assess the quality of assurances given, and whether they can be relied upon in light of the receiving state's practices.Footnote 57 These included whether the terms of the assurances had been disclosed to the Court, who had given them, and whether compliance with the assurances could be objectively verified through diplomatic or other monitoring mechanisms.Footnote 58 It was further necessary to examine whether the designated deportee had been previously ill-treated in the receiving state and whether the reliability of the assurances had been assessed on the sending state. More generally, it was necessary to consider the bilateral relations between the sending and receiving states.Footnote 59
Applying these factors to the Qatada case, the Court acknowledged that torture was ‘widespread and routine’ in Jordan and that no protection was provided by the courts or any other body.Footnote 60 It conceded that as a high-profile Islamist, Abu Qatada potentially belonged to a category of prisoners at risk of ill-treatment. However, the Court essentially followed SIAC's reasoning and found that there would be no real risk of ill-treatment, and, as a consequence, no violation of Article 3 of the ECHR, if Qatada were deported to Jordan. It accepted that the MoU between the UK and Jordan was sufficiently specific and comprehensive.Footnote 61 The assurances were given in good faith by a government whose bilateral relations with the UK had, historically, been strong. They had been approved at the highest levels of the Jordanian government and also had the support of senior officials of the Jordanian security services. The Court did not accept that Qatada's high profile would place him at greater risk of ill-treatment, but rather held that his prominence would ‘make the Jordanian authorities careful to ensure he was properly treated’.Footnote 62 Indeed, any ill-treatment would have ‘serious consequences’ for Jordan's relationship with the UK and ‘cause international outrage’.Footnote 63 In addition, the compliance with assurances would be monitored by an independent human rights organization in Jordan, the Adaleh Centre for Human Rights Studies, which would have access to Qatada in prison. While it was clear that the Adaleh Centre did not have the same expertise and resources as leading international NGOs, the Court agreed with SIAC's conclusion that ‘it was the very fact of monitoring visits which was important’.Footnote 64
C. The Right to a Fair Trial and Non-Refoulement
1. The right to a fair trial and non-refoulement in international case law
In contrast to cases of risk of torture and ill-treatment, the question of whether, and to what extent, the principle of non-refoulement extends to the right to fair trial has received fairly little attention in international case law to date. The Human Rights Committee's General Comment No 13 on the right to a fair trial as protected by Article 14 of the ICCPR does not address the issue at all;Footnote 65 its case law on the matter is tentative at best. In Alzery, the applicant submitted that his expulsion violated Article 14 of the ICCPR on the basis that in the circumstances of the case he was exposed to a risk of an unfair trial.Footnote 66 He pointed to the fact that he had left Egypt in 1991 on account of the persecution of individuals involved with organizations involved in Islamist opposition and the treatment he had already been subjected to. The Swedish government, on the other hand, ‘failed to understand the lack of fair trial given that no trial took place, in Egypt or in Sweden’.Footnote 67 It argued that the claim was hypothetical and that Alzery had insufficient status as a victim. Moreover, it submitted that given that no charge was laid which could attract the application of Article 14, the claim was inadmissible ratione materiae.Footnote 68 The Committee, however, did not consider it necessary to make a finding on this issue in light of the fact that no trial had occurred and in view of the findings that Sweden had exposed Alzery to ‘grave violations of the Covenant’ at the at the point of expulsion.Footnote 69
The ECtHR, on the other hand, has recognized the possibility of Article 6 of the ECHR giving rise to a non-refoulement issue. In Soering, the Court held that ‘the right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society’ and it did not exclude that ‘an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial’.Footnote 70 That formula has been repeated by the Court on a number of occasions.Footnote 71 Nonetheless, as the Court itself acknowledged in Qatada, in the 22 years following the Soering judgment it has not once found that an expulsion amounted to a violation of Article 6 of the ECHR.Footnote 72
2. The Qatada case before English courts in relation to Article 6 of the ECHR
Before SIAC, Qatada submitted that a deportation to Jordan would infringe his right to a fair trial under Article 6 of the ECHR for two main reasons. First, a retrial would take place before the Jordanian State Security Court which was a military court lacking impartiality.Footnote 73 Second, the case against him was based decisively on confessions and there was a real risk that those confessions had been obtained by torture or other ill-treatment.Footnote 74 The State Security Court, moreover, would not investigate properly whether the confessions had been obtained by torture or ill-treatment. When considered cumulatively, these factors amounted to a flagrant denial of justice. SIAC acknowledged the lack of independence and impartiality of the State Security Court.Footnote 75 It also accepted that there was a risk that incriminating evidence had been obtained through torture and that this evidence was of considerable, perhaps decisive, importance.Footnote 76 The Commission concluded, however, that, in spite of its findings in respect of the State Security Court and the real risk of the admission of evidence obtained contrary to Article 3, there would be no flagrant denial of justice under Article 6 of the ECHR, if the applicant were retried in Jordan.Footnote 77 It held that the retrial would take place ‘within a legally constructed framework covering the court system, the procedural rules and the offences’, that it would be in public and that Qatada would be present.Footnote 78 While the dossier from the original trial would be before the retrial court, Qatada could effectively challenge its contents.Footnote 79 Furthermore, the Jordanian legal system, by its terms, did not permit the use of involuntary confession or incriminatory statements.Footnote 80
The Court of Appeal subsequently confirmed that SIAC had rightly held that a breach of Article 6 of the ECHR would only arise if Qatada faced a real risk of a flagrant denial of a fair trial in Jordan, by which was meant the ‘complete denial or nullification of the right to a fair trial’.Footnote 81 SIAC had, however, erred in law in concluding that this test was not satisfied.Footnote 82 According to the Court of Appeal, the critical factor was that the unfairness in issue related to the possible use of evidence obtained by torture. The ECHR imposed a ‘fundamental, unconditional and non-derogable prohibition’ against torture.Footnote 83 A ‘high degree of assurance’ was thus required in relation to proceedings in a foreign state before a person could lawfully be deported to face a trial that might involve evidence obtained by torture.Footnote 84 The Court held that ‘once there was “a very real risk” of evidence in breach of a fundamental prohibition of the ECHR being adduced, it was necessary for SIAC to satisfy itself that there could be excluded the further risk that such evidence would be acted upon by the Jordanian court’.Footnote 85 Express assurances from Jordan were required to confirm that torture-based evidence would not be relied upon; yet, no such assurances had been given.Footnote 86
The UK government then appealed to the House Lords which reversed the Court of Appeal's decision and re-instated the original SIAC decision. The Lords recalled that the ‘issue before SIAC was whether there were reasonable grounds for believing that if [Qatada] were deported to Jordan the criminal trial that he would there face would have defects of such significance as fundamentally to destroy the fairness of his trial’.Footnote 87 While they agreed with the Court of Appeal's statement on the fundamental prohibition of the admission of evidence obtained by torture, they did not accept that this required a high degree of assurance that evidence obtained by torture would not be used in the proceedings in Jordan. It was held that this prohibition applied to the state in which an attempt was made to adduce such evidence.Footnote 88 However, it was not required that this state—in the present case, the UK—retained a terrorist suspect to the detriment of national security.Footnote 89 What was relevant was the degree of risk that the deportee would suffer a flagrant denial of justice if he were deported. In this respect the Lords confirmed SIAC's conclusion and held that in reaching this conclusion SIAC did not err in law.Footnote 90 As a consequence, the deportation order against Abu Qatada stood.
3. The Qatada decision by the ECtHR in relation to Article 6 of the ECHR
At Strasbourg, the UK suggested that the ECtHR adopt the House of Lords’ approach and find that Article 6 would only be engaged in the extraterritorial context when an unfair trial in the receiving state would have serious consequences for the deportee.Footnote 91 The UK further submitted that the terms ‘flagrant denial’ had to be interpreted to mean a breach ‘so fundamental to amount to a nullification, or destruction of the very essence, of the right guaranteed’.Footnote 92 It argued that ‘this was a stringent test, which would only be satisfied in very exceptional cases’.Footnote 93 Adopting the reasoning of SIAC and the House of Lords, the UK argued that the flagrant denial of justice test had not been met in the present case.Footnote 94 The UK further submitted that a distinction needed to be drawn between evidence obtained by torture and evidence obtained by other ill-treatment.Footnote 95 While the admission of evidence obtained by torture would render that defendant's trial unfair, the same proposition did not apply to evidence obtained by ill-treatment. In addition, the UK argued that ‘a high standard of proof should apply when, in the extraterritorial context, the applicant alleged that evidence obtained by torture or ill-treatment would be used at a trial in the receiving State’.Footnote 96 Citing the the majority of the House of Lords in A. and Others (no. 2), the UK further observed that English courts apply a balance of probability test to assess whether evidence was obtained by torture.Footnote 97
The ECtHR, however, held that in the present case the risk of the use of evidence obtained by torture during a criminal trial did amount to a flagrant denial of justice. It first clarified that:
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.Footnote 98
In assessing whether this test is met, the Court held that the same standard and burden of proof should apply as in Article 3 expulsion cases.Footnote 99 Indeed, it considered it ‘unfair’ to impose a higher burden of proof on the defendant and found the balance of probabilities test inappropriate in this context.Footnote 100 Instead, it was 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’.Footnote 101 Where such evidence had been adduced, it was for the government to dispel any doubts about it. The Court observed, moreover, that ‘due regard’ had to be given to the ‘special difficulties in proving allegations of torture’.Footnote 102 In fact, in a criminal justice system ‘where the courts were independent of the executive, where cases were prosecuted impartially, and where allegations of torture were conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture’.Footnote 103 However, in a system, such as the one in Jordan, which was complicit in the practice of torture, such a standard of proof was ‘wholly inappropriate’.Footnote 104
The Court did not specifically address the question of whether a distinction needed to be drawn between evidence obtained by torture and evidence obtained by other ill-treatment. It found, however, that, in relation to the charges against Abu Qatada at the original trial in Jordan, the evidence of his involvement had been obtained by ill-treatment of one of his co-defendants.Footnote 105 This ill-treatment in this case amounted to torture. Furthermore, when the co-defendants stood trial, the Jordanian courts had failed to take any action in relation to their complaints of torture.Footnote 106 Because the Court found a breach of Article 6 on account of the real risk of the admission of torture evidence at Qatada's retrial, it did not proceed with examining his other 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.
D. Concluding Observations
The Qatada decision of the ECtHR is remarkable for several reasons. It is the latest decision in a series of national security cases involving the UK in which the ECtHR overturned the House of Lords. As Adam Tomkins points out, MB Footnote 107 was effectively overturned in A and others v United Kingdom.Footnote 108 The decisions in Gillan,Footnote 109Al Skeini and Al Jedda were overruled by Strasbourg as well.Footnote 110 Tomkins notes that this list of cases ‘makes for sobering reading for anyone who thinks that human rights are safe in the UK, even in our highest courts’.Footnote 111 Whether it is time yet to lose all faith in the ability of English courts to protect international human rights is, of course, open to debate. With respect to the Qatada case, however, one needs to acknowledge that the earlier international case law on non-refoulement in the context of Article 6 of the ECHR (and its equivalent in other human rights treaties) had been rather sparse. Indeed, in 2009, Lord Phillips specifically hinted at that lacuna when he found the Strasbourg jurisprudence on the matter relatively vague.Footnote 112 One may thus speculate that one of the reasons for the House of Lords allowing the Secretary of State's appeal in Qatada was to press the ECtHR to address the issue in detail.
The Strasbourg Court certainly took up that challenge. Yet, its Qatada decision sends rather mixed emotions. The decision to accept the Jordanian assurances as sufficient to remove any real risk of ill-treatment of Qatada upon deportation arguably weakens the application of the non-refoulement principle in the traditional context of Article 3 of the ECHR. There are good grounds for suggesting that the concept of diplomatic assurances is inherently flawed: guarantees of good behaviour are sought from states that are known to violate established human rights obligations. Yet, even if one agrees with the general trend in recent Strasbourg case law which seems to accept diplomatic assurances as an appropriate measure to mitigate the risk of ill-treatment of deportees in the receiving state, the Qatada decision is cause for concern. It sets a relatively low threshold for such assurances to be sufficient to avoid breaching the prohibition on refoulement. Although the assurances provided by Jordan in Qatada were more comprehensive than in other similar cases, such as Saadi and Agiza, the MoU as well as its monitoring provisions had substantial weaknesses. These included the fact that there was no guarantee that the monitoring body would always be granted access to the deportee. Furthermore, the nominated monitoring body, the Adaleh Centre, had little experience in undertaking such tasks. These weaknesses, however, were not considered substantial enough to violate the non-refoulement principle and prevent lawful deportation.
On the other hand, the Qatada decision is remarkable in that it explicitly extended the scope of the non-refoulement principle to encompass the risk of a flagrant denial of justice under Article 6 of the ECHR. The Court found that the admission of evidence obtained by torture amounted to such a denial. The decision provides a welcome additional barrier for governments in expulsion (and extradition) cases. At the same time, it raises the question of whether this hurdle can be overcome. The UK has since sought to do so by obtaining diplomatic assurances to the extent that evidence obtained by torture or ill-treatment will not be admitted at possible retrial of Qatada in Jordan.Footnote 113 The ECtHR's decision is silent in this regard. The decision of the English Court of Appeal, in contrast, foreshadowed this possibility by referring to a ‘high degree of assurance’ which was required in relation to proceedings in a foreign state before a person can lawfully be deported to face a trial that might involve torture evidence. It is in this respect that the Qatada decision of the ECtHR is ultimately problematic. If Strasbourg is prepared to accept a similarly low threshold for Article 6 assurances, as it does in traditional Article 3 cases, then the extension of non-refoulement to include the risk of a flagrant denial of justice will be rather symbolic. Only time will tell, therefore, whether the Qatada decision is a true renaissance moment for the principle of non-refoulement or whether it has been a Pyrrhic victory instead.
Postscript
The Othman judgment has become final after a panel of judges of the Strasbourg Court disallowed an appeal to the Grand Chamber lodged by Qatada shortly before midnight on 17 April 2012. At that time, the Home Secretary, Theresa May, had already initiated deportation proceedings, mistakenly believing that the deadline for appeals had expired on 16 April 2012. This prompted a furious political row in the United Kingdom over whether she had misjudged the deadline for appeals. The European Court subsequently found that the appeal had arrived in time, but refused to allow it as it failed to raise a serious question affecting the interpretation or application of the ECHR, or a serious issue of general importance. The case is now back before SIAC to determine whether the latest assurances from the Jordanian government in relation to upholding fair trial standards are sufficient to allow for deportation. On 28 May 2012, a SIAC judge ruled that Qatada remain in detention until his appeal against the deportation order is heard on 8 October 2012.
