Othman (Abu Qatada) v. the United Kingdom: Questioning Gäfgen?

The European Court of Human Rights recently delivered its judgment in Othman (Abu Qatada) v. the United Kingdom, a case concerning the deportation of a terrorism suspect from the UK to Jordan. The applicant, Mr. Othman, had arrived in the United Kingdom in 1993, having fled Jordan. He requested asylum, alleging that he had been detained and tortured by the Jordanian authorities. He was recognised as a refugee in 1994 and granted leave to remain in the UK for an initial period of four years. In 1998 he applied for indefinite leave to remain in the UK. In 2002, while his application was still under consideration, he was arrested and taken into detention under the Anti-terrorism, Crime and Security Act of 2001. In August 2005 he was served with a notice of intention to deport. He challenged his possible deportation, thereby eventually reaching the European Court of Human Rights, alleging that there was a real risk that he would be subjected to torture upon his return to Jordan, in violation of article 3 ECHR. He also feared that he would face a retrial for offences (conspiracy to cause explosions and membership of a terrorist organisation) for which he had been convicted in Jordan in absentia in 1999. He claimed, inter alia, that there was a real risk that evidence obtained by torture – either of him, his co-defendants or other prisoners – would be admitted against him during the retrial, in violation of article 6 ECHR.

The Court ruled that article 3 would not be violated if the applicant were to be deported to Jordan, holding that sufficient safeguards were put in place to prevent the applicant’s torture through the signing of a Memorandum of Understanding between Jordan and the United Kingdom in which the latter had obtained diplomatic assurances that the applicant would not be tortured in Jordan. In this post I will  not address the article 3 part of the judgment in further detail, but will focus on the article 6 claim instead, since it raises possible concerns of compatibility with the Court’s leading judgment on the use of evidence obtained through inhuman treatment, Gäfgen v. Germany (1 June 2010).

In Othman, the Court ruled that article 6 ECHR would be violated if the applicant were to be deported to Jordan, because there would be a real risk that evidence obtained through torture of his co-defendants would be used against him during his retrial. Because the admission of such evidence would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome, the Court held that it would constitute a flagrant denial of justice. The Court used striking and clear language to underscore its findings in Othman. One passage is particularly worth quoting in full: “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.”

As the Court pointed out, this is the first time that it has ever held that an expulsion would violate article 6, thereby underlining that the “flagrant denial of justice” test is a stringent test of unfairness. This wording is presumably included in the judgment to alleviate any concerns the UK or any other Member State may have about the reach of the judgment, as well as to counter any criticism the Court may face in the aftermath of its delivery.

Commentary

The element in Othman that drew my attention the most was one particular sentence in paragraph 267 of the judgment. Having determined that article 6 would be violated if the applicant would be deported to Jordan, since there was a real risk that evidence obtained through torture would be used against him at his trial, the Court stated that it

“does not exclude that similar considerations may apply in respect of evidence obtained by other forms of ill-treatment which fall short of torture.”

It is clear that this passage is obiter dictum. Nevertheless, I did immediately wonder how it would stand up to the Court’s reasoning in Gäfgen.

In Gäfgen, the Court held that “in the particular circumstances of the applicant’s case, the failure to exclude the impugned real evidence, secured following a statement extracted by means of inhuman treatment, did not have a bearing on the applicant’s conviction and sentence.” His article 6 rights had therefore not been violated. Not unsurprisingly, Othman, which according to the Court involves a clear example of the admission of evidence obtained through torture, does not engage with this aspect of the Gäfgen judgment. Yet, the Chamber still decided to include the passage quoted above. Why did it do so, if this was not necessary for the resolution of the instant case? And how does this passage relate to the Gäfgen judgment?

The quoted passage may at first sight appear to contradict Gäfgen. But one can imagine a perfectly reasonable explanation for its presence in Othman. That reason is connected to the element of time, to the moment at which the Court places itself when examining the facts of a case. In Gäfgen, the applicant’s trial had already taken place. This allowed the Court to determine that the admission of evidence obtained through inhuman treatment had not had a bearing on his conviction: “the Court considers that it was the applicant’s second confession at the trial which – alone or corroborated by further untainted real evidence – formed the basis of his conviction for murder and kidnapping with extortion and his sentence. The impugned real evidence was not necessary, and was not used to prove him guilty or to determine his sentence. It can thus be said that there was a break in the causal chain leading from the prohibited methods of investigation to the applicant’s conviction and sentence in respect of the impugned real evidence.” This reasoning of the Court is contestable (see my previous post on Gäfgen here), but it is nevertheless its standing and binding case law on the matter.

In Othman, however, the applicant had not yet faced trial. Instead he was facing a deportation order that, if executed, would lead to his retrial. And during this retrial there would be a real risk that evidence obtained through torture would be used against him. Under such circumstances, it makes somewhat sense for the Court to specify that it does not exclude that it would come to a similar conclusion – violation of article 6 due to flagrant denial of justice – if the evidence had been obtained through inhuman treatment. This makes sense precisely because the Court cannot know to what extent such evidence will be decisive during the future trial. It is thus impossible to apply the Gäfgen test – is there a break in the causal chain or not? – in situations such as Othman. Taking a cautious and principled approach may therefore involve also preventing deportation of an applicant who faces a real risk of being tried on the basis of evidence obtained through inhuman treatment.

The quoted passage from Othman is thus not incompatible with the Court’s ruling in Gäfgen. However, it does signal how a difference in rights protection may be generated within the Council of Europe region between two types of applicants: those who have already faced trial in a Member State and those who are facing deportation to a country outside the Council of Europe region where they will or might face trial. Following Gäfgen, the former group of applicants will only win their case under article 6 if the use of any evidence obtained through inhuman treatment was decisive for or at least had a bearing on their conviction. If the Othman reasoning were to be extended to evidence obtained through inhuman treatment, the latter group of applicants would only need to prove that there is a real risk that such evidence would be used during their trial, no matter how central it may become to a possible conviction. It would thus be much easier for them to win their case under article 6. As a result, the Court would end up offering a lesser degree of protection against the real use of evidence obtained through inhuman treatment in the Council of Europe region than it would against the potential use of such evidence outside the Council of Europe region.

This conclusion further invites us to consider whether the Grand Chamber in Gäfgen did not choose the wrong temporal location to assess the validity of the applicant’s claim. I think a compelling argument can be made to that effect. It may be argued that, in Gäfgen, the Court should have placed itself at the moment in which evidence had been obtained through inhuman treatment of the applicant, before the trial. Had it done so, I believe the Court would have realised that the admission at trial of any type of evidence obtained through ill-treatment, whether it be torture or inhuman treatment, is categorically unacceptable since it automatically breaches the right to a fair trial.

Applying such a categorical approach, without looking at the impact of the admission of the evidence on the actual conviction, is not an outrageous or unprecedented proposition. A categorical approach is already applied to confessions obtained through torture and inhuman treatment (see Gäfgen, para. 166 with further references) and to all types of evidence obtained through torture (Jalloh v. Germany, 11 July 2006, para. 105). It is also already applied to other situations, including the absence of legal assistance during a suspect’s first interrogation (Salduz v. Turkey, 27 November 2008). Would application of the same logics to the admission of evidence obtained through inhuman treatment really go too far? I believe not. Instead, now that the passage of some time since the Gäfgen judgment has allowed for the return of a sense of objectivity, it is becoming more and more clear to me that the majority in Gäfgen may have been overly influenced by the horrifying facts of the case, the moral depravity of Mr. Gäfgen and the (political) repercussions that would have ensued had the Court found in his favour, thereby losing sight of the bigger questions of principle.