September 27, 2012
Earlier this week, the European Court of Human Rights released its judgment in El Haski v. Belgium, a case on the admissibility at a criminal trial of evidence potentially obtained through ill-treatment of third persons in a third State (Morocco). The ECtHR ruled that the Belgian authorities should have excluded the evidence from the trial. The applicant, who had been convicted for his membership of a terrorist organisation (le groupe islamique combattant marocain; GICM), was granted € 5,000 compensation. The Belgian media quickly picked up on the judgment. Headlines titled “Terrorist receives compensation” and comments referred to “growing criticism” of the European Court “in most Western European countries, including Belgium”, “because Strasbourg systematically exceeds its competences”.
In this post I will first attempt to place the judgment in the wider case law of the Court on the admissibility of evidence obtained through violations of art. 3. I will return to the assessment of the case in the Belgian media at the end of the post.
Facts and Arguments
The applicant in El Haski is a Moroccan citizen. A few months after his (illegal) arrival in Belgium, he was arrested and indicted for membership of a terrorist organisation (GICM). He was ultimately convicted to seven years imprisonment. His conviction relied on a variety of evidentiary elements, including declarations made by third persons in Morocco. In Strasbourg, the applicant claimed a violation of art. 6, arguing – in part – that the declarations of the third persons in Morocco had been obtained through treatment contrary to art. 3. The Belgian government contested that claim, arguing that the applicant had failed to prove “beyond reasonable doubt” that the testimonies of the Moroccans had been obtained through torture. The Belgian government maintained that proof of a “real risk” – the test developed by the Court in similar circumstances in Othman (Abu Qatada) v. the United Kingdom – was insufficient, since that test was originally designed for use in expulsion cases involving a potential and future violation of art. 3. In the present case, the Belgian government argued, the relevant question should instead be whether treatment contrary to art. 3 had effectively been inflicted upon the persons whose testimonies were used at the trial against the applicant.
The Court’s Standing Case Law on the Matter
In previous cases – most notably Jalloh v. Germany, Gäfgen v. Germany (see posts here and here) and Othman (Abu Qatada) v. the United Kingdom (see post here) – the ECtHR had already developed a set of principles on the admissibility, at a criminal trial, of evidence obtained through ill-treatment: (i) confessions, whether obtained through torture or inhuman treatment, can never be used as evidence during a criminal trial; (ii) other evidence obtained as a result of torture is likewise to be excluded; (iii) other evidence obtained as a result of inhuman treatment only falls to be excluded when it has been shown that the violation of art. 3 had an impact on the conviction or sentence; (iv) these principles also apply when the victim of the ill-treatment was not the applicant himself, but a third person (at the very least least when the ill-treatment constituted torture ). In El Haski, the ECtHR added another layer of complexity to these principles.
The Court’s Reasoning
In El Haski, the Court held that it should follow the approach developed in Othman. This holding is in itself a new – even if logical – development in the Court’s case law, given that El Haski and Othman ultimately concerned different questions. In Othman, the Court held that the applicant’s art. 6 rights would be violated if he would be extradited to Jordan, because there was a real risk that evidence obtained through torture would be used against him in a retrial against him in Jordan. In El Haski, the applicant had already faced trial in a Council of Europe Member State and claimed that his trial had been unfair. Nevertheless, the extension of the Othman principle to the facts of El Haski was to be expected. It would hardly make sense to apply the principle to potential future violations of art. 6 in a third State, without applying it to an actual art. 6 case in a Member State.
But there are more important – and more interesting – distinctions between El Haski and Othman. Firstly, in El Haski – contrary to what happened in Othman – the applicant did not provide any specific documentation that could offer a prima facie indication that the third persons whose testimonies were used during his trial had been ill-treated. Secondly, the applicant in El Haski claimed that there was a real risk that the third persons had been submitted to treatment contrary to art. 3 in general, without specifying the nature of such treatment, while the treatment in Othman was characterised by the Court as torture.
Both distinguishing elements make for an interesting cocktail, which the Court was not afraid to stir in El Haski, further developing – and expanding – the ‘Othman-test’ as applied in that case (i.e. “a flagrant denial of justice will arise when evidence obtained by torture is admitted in criminal proceedings. The applicant has demonstrated that there is a real risk that Abu Hawsher and Al-Hamasher were tortured into providing evidence against him and the Court has found that no higher burden of proof can fairly be imposed upon him.”).
While in Othman the Court had only indicated – by way of obiter – that “it [did] not exclude that similar considerations may apply in respect of evidence obtained by other forms of ill-treatment which fall short of torture”, the Court explicitly expanded the ‘Othman-test’ to evidence obtained by inhuman or degrading treatment in El Haski:
Il reste … à déterminer si le système judiciaire marocain offrait à l’époque des faits des garanties réelles d’examen indépendant, impartial et sérieux des allégations de torture ou de traitements inhumains ou dégradants et, dans la négative, s’il existait un « risque réel » que les déclarations litigieuses aient été obtenues par le biais de tels moyens.
Because the applicant had not submitted any specific documentation that indicated the ill-treatment inflicted upon the third persons, the Court relied solely on reports by NGO’s and UN bodies to answer both questions. It relied on reports by Human Rights Watch, FIDH, Amnesty International, the UN Committee Against Torture and the UN Human Rights Committee to determine that – at least when it concerned the fight against terrorism in general and the 2003 Casablanca bombings in particular (suspected to be the work of GICM) – the Moroccan system did not provide the requisite guarantees. As a result, proof of a “real risk” of treatment contrary to art. 3 sufficed. And also that proof, the Court deduced from international reports only (by the same NGO’s and UN bodies). Thus, the Court employed the ‘Othman-test’ flexibly in El Haski. At first sight, this might appear to radically expand the ‘Othman-test’: as soon as ill-treatment is documented as being a routine practice in a third State, no testimonies obtained from third persons in that State can be used against a person facing trial in a Council of Europe Member State. However, I do not think such a conclusion can be derived from the El Haski judgment. The Court was careful to point out that the third persons in question were suspects in the Casablanca bombing. The cited reports showed that it was particularly likely that persons suspected of being involved in those bombings, which the third persons were, had been ill-treated by the Moroccan authorities. Whether the Court will – in future cases – also consider the “real risk” test to be met in cases going beyond such particular circumstances, i.e. where the allegation is a general one: that ill-treatment is prevalent in a country, cannot be conclusively confirmed, nor denied, on the basis of El Haski. The Court will – most likely – be confronted with that question in future cases.
El Haski and the Belgian Media
As indicated at the outset of this post, the Belgian media reacted quickly to the El Haski judgment. Most attention was paid to the compensation awarded to the applicant and to “Strasbourg systematically exceeding its competences.”
Regarding the former, I do not think there is much cause for public outrage about a pro-criminals Court (not that the reporting newspaper was outraged; it focused on the compensation without adding any value judgments as to its necessity/appropriateness). The applicant had in fact demanded a much larger sum (€ 75,000) by way of just satisfaction than the € 5,000 granted by the Court. He had also explicitly requested the Court to order a re-trial. However, Belgian law already allows the re-opening of proceedings when an established violation of the Convention is the consequence of shortcomings in the procedure of such gravity as to cast serious doubt on its outcome. The Court thus left it up to the applicant to make use of this domestic remedy, declining to order a retrial out of its own motion.
Regarding the argument of ‘judicial activism’, such criticisms will no doubt continue to be levelled at the Court. But contrary to what is sometimes implied, the primary concern of the Court in the context of art. 3 does not seem to be to grant ever more extensive rights protection to persons who are deemed – by some – not to deserve such extensive protection (in the first place suspected or convicted criminals, but also illegal immigrants and asylum seekers). Instead, what I read the Court do be doing, is to offer – to use its own terms – safeguards that are “practical and effective”, by upholding the absolute nature of the prohibition of torture. Effective protection in that domain necessarily calls for – in my opinion – exclusion of all evidence obtained by treatment contrary to art. 3 from criminal trials. Erring on the safe side by also excluding evidence that was potentially obtained by such treatment is in that sense a prudent approach, provided that the “real risk” test has been met and given that delivering proof “beyond reasonable doubt” will almost always be impossible when it concerns States that have a track record of routinely applying – and hiding – torture and inhuman treatment against (certain types of) suspects.
Moreover, contrary to popular opinion, the Court is not all that lenient on asylum seekers and suspected or convicted criminals who rely on other Convention rights – most notably their right to private life and family life – to challenge their expulsion, extradition or deportation. A quick search in HUDOC reveals that – of the cases available there – between 1 January 2011 and today the Court found a violation of art. 8 in seven such cases and no violation in six others. Hardly the figures of a purely ‘activist’ Court. On the contrary. During our discussion of such cases at our regular meetings, we often feel that the Court does not attach sufficient weight to the importance of family ties, particularly when they concern members that do not belong to the nuclear family (parents of adult children or grandparents of minors, for instance).