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).

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