Decisions

European Court of Human Rights January 17, 2012 ECHR 2012 (extracts)

Disposition Unanimously: the application declared admissible; “the applicant’s deportation to Jordan would not be in violation of Article 3 of the Convention”; no violation of Article 3 taken in conjunction with Article 13; deportation to Jordan would not be in violation of Article 5; and “the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention on account of the real risk of the admission at the applicant’s retrial of evidence obtained by torture of third persons”. The judgment became final on 9 May 2012, when a panel of the Grand Chamber refused his request for referral.

Omar Othman, known as Abu Qatada, was recognised as a refugee in 1994 on the basis that he had been detained and tortured by the Jordanian authorities (paragraph 7). He was convicted in his absence in Jordan in April 1999, and again after a trial in the autumn of 2000, when he was sentenced to fifteen years’ imprisonment with hard labour (paragraphs 9, 18 and 19). On 10 August 2005 the United Kingdom and Jordan signed a memorandum of understanding setting out assurances for people returned between them, and the next day he was served with notice of intention to deport (paragraphs 8 and 23). The Court restated the rule: “Article 3 is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion” (paragraph 185). On assurances it held that “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” (paragraph 187), and 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” (paragraph 188). It concluded that “the applicant’s return to Jordan would not expose him to a real risk of ill-treatment” (paragraph 205). It held against the deportation because of the risk that evidence obtained by torturing other people would be used at his retrial: “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” (paragraph 267). It found “a real risk that the applicant’s retrial would amount to a flagrant denial of justice” (paragraph 282). The Court’s press release called it “the first time that the Court has found that an expulsion would be in violation of Article 6”.

Article 3 ECHR Diplomatic assurances National security Evidence obtained by torture Fair trial Flagrant denial of justice

Caution The Court accepted that the assurances Jordan gave answered the risk of torture; the deportation was barred only by the risk that evidence obtained by torturing other people would be admitted at his retrial. The judgment does not record what happened after it became final, and the Coalition has not read a source on it. The Supreme Court of the United Kingdom applied the Othman approach to assurances in R (AAA (Syria) and others) in 2023 (see that entry) and reached the opposite result on Rwanda.