'Deporting Abu Qatada: the European Court of Human Rights, and Governments': David Feldman

There has recently been a good deal of controversy surrounding judgments of the European Court of Human Rights. Successive U.K. Governments since Soering v. United Kingdom in 1989 have considered that the Court’s interpretation of several rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention) have interfered unduly with the formulation of public policy in the state. There have been various high-profile examples, such as disagreement as to whether it is permissible to maintain the U.K.’s blanket ban on convicted prisoners voting in elections.
An even longer-running source of tension stems from the decision of the Court in Chahal v. United Kingdom in 1996 that states the obligation of states not to subject people to torture, inhuman or degrading treatment or punishment, or violations of at least some other rights under the European Convention makes it unlawful for states to extradite or deport people to places where there is a real risk that those rights will be violated. Ministers consider that this unduly interferes with the right of states to control the freedom of foreign nationals to enter and remain on U.K. territory, particularly in the context of people who are suspected of representing a threat to the public interest, public safety, or national security. Governments have campaigned, both through diplomatic action and by intervening in litigation in Strasbourg where similar issues have arisen in relation to other states, to water down people’s right not to be sent to places where they face torture.
In 1993, Abu Qatada, or Othman, came to the U.K. from Jordan, the country of his birth. He was granted asylum mainly on the ground that he had been detained and tortured by Jordanian security forces in 1988 and again in 1990-91. In April 1999, Jordan’s State Security Court court convicted him in his absence, of encouraging a conspiracy to bomb the American School and the Jerusalem Hotel in Amman in 1998. The main evidence against him was a confession by another defendant, who claimed that he had been tortured. His claim was supported by medical examiners and lawyers, but the Court decided that he had not proved torture and admitted his confession as evidence. In autumn 2000 Abu Qatada was again tried in his absence on a charge of encouraging another conspiracy to cause explosions. He was alleged to have paid for a computer, and his published writings, found at the house of a co-defendant, were said to have encouraged the conspiracy. The main evidence against Abu Qatada came from that co-defendant, Abu Hawsher, who claimed to have been tortured. Once again, the Court did not investigate the allegation of torture. In 2000, Jordan started an application to extradite Abu Qatada from the U.K., but the application was dropped.
Meanwhile, Abu Qatada had applied for indefinite leave to remain in the U.K. Before his application had been determined, the attacks on the U.S.A. by Al Qaeda occurred in September 2001. In 2002, he was detained under powers contained in the Anti-Terrorism, Crime and Security Act 2001, on the ground that he was suspected of being having links with Al-Qaeda. The U.K. Government started to consider deporting him to Jordan. The Foreign and Commonwealth Office advised that this would contravene his right to be free of torture, so the U.K. Government started to negotiate a memorandum of understanding with Jordan on the treatment of people deported from the U.K. to Jordan with a view to removing the risk of torture and so allowing the U.K. to deport Abu Qatada and others in a similar position. A memorandum of understanding was agreed in 2005.
In the meantime, in December 2004, the House of Lords held that the detention powers under which Abu Qatada was detained violated the detainees’ rights to liberty and freedom from discrimination on the ground of nationality. Parliament therefore passed the Prevention of Terrorism Act 2005, which replaced the detention provisions with a new regime of restricted freedom through control orders. Abu Qatada was subject to a control order. He appealed against it. In 2005, while his appeal was pending, the Home Office informed him that it intended to deport him to Jordan because his presence in the U.K. threatened national security. He challenged that decision on grounds which included a risk that he would be tortured, and that, although he would be entitled to be re-tried on the conspiracy charges, he would not get a fair hearing as he would be liable to be convicted on the basis of evidence obtained by torture of himself or others. The memorandum of understanding between the U.K. and Jordan gave assurances that people deported to Jordan would not suffer torture, but no assurance that evidence obtained by torturing other people would not be used against them.
The Special Immigration Appeals Commission decided that the memorandum of understanding would not remove a real risk that evidence obtained by torture would be used in Abu Qatada’s retrial in Jordan. It took the view, however, that this would not amount to a ‘flagrant denial’ of justice, and that was the standard to apply when deciding whether the U.K. Government would be acting unlawfully in returning Abu Qatada to Jordan.
The Court of Appeal [2008] EWCA Civ 290 disagreed with the SIAC on this point, but on a further appeal the House of Lords held that using evidence obtained by torture would not amount to a fundamental denial of the right to a fair hearing, or to egregious injustice, so Abu Qatada could be deported.
Abu Qatada challenged this ruling before the European Court of Human Rights. On 14 December 2010, there was a public hearing before a seven-judge Chamber of the European Court of Human Rights, but it was not until 17 January 2012 that the Court gave judgment. The Court held unanimously that, in accordance with its long-standing case-law, it would violate the right to be free of torture to deport someone to a country where they would face a real risk of being tortured, but that the assurances negotiated between the Jordanian and U.K. Governments were reliable and removed the risk of Abu Qatada himself being tortured. On the other hand, in agreement with the Court of Appeal they found that the use of evidence obtained by torture was standard in the Jordanian criminal system. It was likely that Abu Qatada’s retrial would involve such evidence, and this would be a flagrant denial of his right to a fair hearing. It would accordingly be unlawful to deport Abu Qatada to Jordan unless the U.K. Government could secure reliable assurances from the Jordanian Government that no evidence obtained by torture would be used at Abu Qatada’s retrial.
The U.K. Government obtained such assurances, and was poised to deport Abu Qatada when, just within the time-limit, he lodged with the Strasbourg Court a request for his case to be referred to the Grand Chamber of the Court. His deportation was then stayed. Yesterday (9th May), a panel of judges rejected his request, and the judgment of 17 January became final, clearing the way for a final decision as to whether to deport Abu Qatada.
What is the significance of Abu Qatada’s case? Four matters stand out.
First, the judgment of the Court as a key international tribunal reinforces international consensus that torture is unacceptable, and that states which employ it cannot expect other states to co-operate with them, particularly in relation to criminal justice. The judgment reflected the European consensus by holding for the first time that international disapproval of torture had reached a point at which it should always be regarded as a flagrant violation of the right to a fair hearing to send someone to face a trial involving the use of evidence obtained by torture, and that it would be as unlawful to send a person to face such a trial as it would be to send people to face torture themselves. The idea that a trial in a member state of the Council of Europe would violate the right to a fair hearing if the court makes use of evidence obtained by torture is not new. That has been well established for some time (see Gäfgen v. Germany 1 June 2010, GC). What is new is the decision that deporting someone to face such a hearing in a state which is not a party to the European Convention on Human Rights would itself violate his or her right to a fair hearing under the Convention. This represents an international backlash against American attempts to make torture an acceptable part of anti-terrorism strategy, both by redefining torture to allow treatment which shocks the conscience and by encouraging states to participate in torture through mechanisms such as so-called ‘extraordinary rendition’.
Secondly, the case demonstrates that the effect of the Court’s firm line on torture need not interfere unnecessarily with policy-making by states, especially in relation to immigration or security policies concerning foreign nationals. It requires deporting states to make secure arrangements with receiving states to ensure that deportees will be treated with the respect to which they would be entitled had they remained within the Council of Europe’s geographical area. Appropriately reliable memoranda of understanding with other states are capable of ensuring that the U.K. can give effect to foreign and security policies while respecting fundamental rights and freedoms.
Nevertheless, the case highlights the current delicacy of relations between the U.K. Government and the European Court of Human Rights. The Government has used its period of Presidency of the Council of Europe to press for amendments to the Convention to limit the power of the Court to review rules, acts and decisions made by national authorities in states, at least where the application of the Convention has been properly considered within the state. On 19-20 April 2012, the High Level Conference on the Future of the European Court of Human Rights in Brighton concluded with a Declaration which mentioned subsidiarity and the sovereignty of states, and reaffirmed the wholly orthodox position that—
States Parties must respect the rights and freedoms guaranteed by the Convention, and must effectively resolve violations at the national level. The Court acts as a safeguard for violations that have not been remedied at the national level. Where the Court finds a violation, States Parties must abide by the final judgment of the Court. (§3)
The Declaration also stresses the margin of appreciation which states have in how they apply and implement the Convention, and—
Concludes that, for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the Preamble to the Convention and invites the Committee of Ministers to adopt the necessary amending instrument by the end of 2013, while recalling the States Parties’ commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention... (§§11, 12)
Thirdly, for those who feel that the Strasbourg Court adopts a different and less practical approach to rights from that of English courts, the Al Qatada’s case usefully illustrates that the Strasbourg Court’s approach is not alien to that of our judges. The European Court of Human Rights adopted the facts and much of the legal assessments common to the SIAC, the Court of Appeal and the House of Lords. On the key issue of impact of torture on a fair hearing, they preferred the approach of our Court of Appeal to that of the House of Lords, but there was nothing in the judgment that could not be found mirrored in the domestic judgments.
Finally, the case shows how important it is for human rights to protect members of unpopular minorities, and how valuable it can be to have a judicial rather than political process for that purpose. Abu Qatada is suspected of being a spiritual inspiration for Al Qaeda, and of encouraging if not actively assisting the planning of acts of terrorism. He is feared and hated in many parts of the world. Those facts make it less likely that any case against him will be evaluated carefully and dispassionately. Yet it is in such circumstances that careful and dispassionate evaluation of evidence is most needed. The dangers of injustice and unjustified harm to individuals when we dispense with due process and procedural humanity are exemplified by the history of sanctions imposed on individuals as a result of U.N. Security Council resolutions targeting them without any procedure for them to put their cases before or after the resolutions have been made. As the President of the Court, Sir Nicolas Bratza, said in his speech at the Brighton Conference, ‘It is in the nature of the protection of fundamental rights and the rule of law that sometimes minority interests have to be secured against the view of the majority.’ He reminded governments that the Court’s judgments have brought real benefits for countries on the internal plane. The Abu Qatada case shows that this is a role which judges perform both domestically and internationally.