human rights Cases

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Othman (Abu Qatada) v UK (2012) 55 EHRR 1, 189.

Introduction

States are often faced with the problem of how to deal with individuals who are a risk to national security as well as terrorist suspects specifically when they cannot be deported to their home country due to the risk of torture or ill treatment. In order to get around this dilemma, governments have increasing sought to secure diplomatic assurances from states that the individual who will be deported with receive a fair trial and not be subjected to ill treatment[1].

Case law prior to Othman v United Kingdom

In Soering, the Court of the ECHR considered that the appellant's deportation to the US would expose him to ill treatment beyond the threshold set by Article 3 of the ECHR[2] , In Chahal[3], the grand Chamber confirmed:

Whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion.[4]

The significance of this case law is that it shows that even when an individual is considered a risk to national security, the UK Government prefers to prosecute them as opposed to deportation when there is a grave risk of ill treatment or torture.[5]

The facts in Othman v United Kingdom

The applicant, O, was born in Jordan and claimed that it would be a breach of his rights under the ECHR if the UK deported him to Jordan. O resisted deportation under Articles 2, 3, 5 and 6 of the ECHR. O had been successful in gaining UK asylum, a year after arriving in the UK in 1993. The charges against O was received in absentia in Jordan and related to conspiracy to cause explosions. O stated that the evidence connected with these convictions were extracted from his co-defendants through torture, there was compelling evidence in support of this claim. It was the UK Government's understanding that the ECHR[6] excluded deporting terrorist suspects to Jordan and a memorandum of understanding was negotiated with Jordan. Jordan assured the UK that the treatment of deportees would be consistent with the Convention. The UK ordered the deportation of O.

The Appellant made an application to Special Immigration Appeals Commission (SIAC) and the Court of Appeal who allowed O's appeal on the grounds of Article 6[7] . However in a further appeal to the House of Lords[8], O's complaints were rejected and O made a further appeal to the Strasbourg Court who concluded that there was no;

  1. Violation of Article 3 of the ECHR.
  2. Violation Article 3 of the ECHR, in unification with Article 13 of the ECHR.
  3. Violation of Article 5 of the ECHR.
  4. But it would violate Article 6 of the ECHR due to the real risk of the submission of evidence, at the Applicant's re-trial, deduced by the torture of witnesses[9].

The Court stressed how strict the flagrant denial of justice test is and the burden is on the appellant to prove that by deporting them from one state to another, it would result in a real risk of a denial of justice[10]. The Court went on to find that O had fulfilled his burden and deportation would result in a breach of Article 6[11].

Issues and outcome

Extensive negotiations occurred between the UK and Jordanian government were Jordan declared that any retrial that took place would be fair. These promises were deemed as insufficient by the Special Immigration Appeals Commission and the Court of Appeal with the latter stating, 'Torture is universally abhorred is an evil. A state cannot compel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture'.[12]

A treaty between the UK and Jordan was formed and approved by legislature and the appellant agreed to be deported.[13]

Following Othman v United Kingdom

In contrast to Soering, Othman successfully fulfils a high threshold in relation to violations of a fair trial. Following Othman, in the case of El Haski v Belgium[14] it was determined by the ECtHR that deportation to Morocco would be a breach of Article 6. It was suspected that the evidence used against the applicant had been attained by methods contrary to Article 3.[15] By reverting back to diplomatic assurances that were prevalent in the case of Othman, it gave the court the opportunity to disregard any breach of Article 3. This may possibly have been, a method of preventing the judgment being criticised for restrictions placed on the national security provisions of Member States by the Strasbourg court.

Conclusion

This case is significant for a number of reasons the first of which being that it is amongst one of the latest cases were the ECtHR has overturned a decision of the HL. The decision of the ECtHR to allow the deportation of the appellant to Jordan on the basis of the assurances made, considerably weakens the principles behind Article 3 specifically when assurances are sought from states who have infringed their human rights obligations. In addition the acceptance of such assurances appears to be a reflection of how the risk of ill treatment and torture can be overlooked.

Footnotes

[1] Christopher Michaelsen,' The renaissance of non-refoulement? The Othman (Abu Qatada) decision of the European Court of Human Rights', ICLQ, 2012, 61 (3), 750-765.

[2] EHRR 439, judgment of 7 July 1989, about European Convention of Human Rights 1950.

[3] 23 EHRR 439, judgement of 25 October 1996.

[4] Ibid 80.

[5] Kate Jones, 'Deportations with assurances: addressing key criticisms', ICLQ, 008, 57 (1), 183-194.

[6] ECHR, Art 6.

[7] Othman v Secretary of State for the Home Department [2008] EWCA Civ 290.

[8] Bernard McCloskey, Human Rights, Governments and judicial independence, E.H.R.L.R, 2012, 5, 479-487.

[9] Ibid 29.

[10] Ibid 260.

[11] Case Comment, 'Deportation of foreign national- safety on return - Othman v United Kingdom (8139/09)' EHRLR 2012,3,339-343.

[12] [2003] EWCA Civ 277 [59] Dyson MR.

[13] Ken Roach, Comparative counter terrorism law (CUP, 2015), pg 90.

[14] App No. 649/08, 25 September 2012.

[15] Ibid 99.