Othman v United Kingdom [European Court of Human Rights (Fourth Section)]

• Jurisdiction: European Union
• Judge: Bjorgvinsson,Mijović,Poalelungi,Bratza,Bianku,de Gaetano,Garlicki
• Court: Court of Justice of the European Union
• Date: 17 January 2012
• Docket Number: (Application No 8139/09)1

European Court of Human Rights (Fourth Section)

(Garlicki, President; Bratza, Mijović, Bjorgvinsson, Bianku, Poalelungi and de Gaetano, Judges)

(Application No 8139/09)1

Othman

and

United Kingdom

Human rights — Prohibition of torture — European Convention on Human Rights, 1950, Article 3 — Deportation of non-national to State of nationality — Whether substantial grounds for believing deportee would face a real risk of torture, inhuman or degrading treatment or punishment in receiving State — Assurances of good treatment in Memorandum of Understanding — Nature of assurances — Provision for monitoring — Whether sufficient to establish that deportation would not entail violation of Article 3

Human rights — Right to liberty — European Convention on Human Rights, 1950, Article 5 — Whether applicable in expulsion case — Deportation of non-national to State of nationality — Whether substantial grounds for believing that deportee would face a real risk of flagrant breach of Article 5 standards in receiving State

Human rights — Due process — European Convention on Human Rights, 1950, Article 6 — Deportation of non-national to State of nationality — Whether substantial grounds for believing deportee would face real risk of flagrant injustice in receiving State — Retrial for crimes of which deportee convicted in absentia— Risk that evidence obtained by torture would be admitted

Terrorism — Right of State to take firm stand against those involved in terrorism — Right to deport non-nationals suspected of involvement in terrorism — Absolute character of prohibition on torture, inhuman and degrading treatment and punishment — Whether substantial grounds for believing deportee would face a real risk of torture, inhuman or degrading treatment or punishment in receiving State

Treaties — Non-binding arrangements — Memorandum of Understanding — Relevance to question whether substantial grounds for believing deportee would face a real risk of torture, inhuman or degrading treatment or punishment in receiving State

Summary:2The facts:—The applicant was a Jordanian national who entered the United Kingdom in 1993 and was subsequently recognized by the United Kingdom Government as a refugee and granted indefinite leave to remain in the United Kingdom. In 1999 and 2000 he was convicted in absentia in Jordan of terrorist offences. In 2002 he was detained in the United Kingdom on suspicion of involvement in terrorism. In 2005 the United Kingdom concluded a Memorandum of Understanding (‘the MoU’) with Jordan under which Jordan gave assurances that persons returned to Jordan by the United Kingdom would be treated in a humane and proper manner in accordance with international standards, would be brought promptly before a court if arrested and would be accorded a trial meeting international standards of due process.3 There were also provisions for monitoring of returned persons who were arrested and detained pending trial. The applicant challenged the decision to deport him on the grounds that, if returned to Jordan, he would be retried for the offences in respect of which he had been convicted in absentia and would therefore face a real risk of torture, lengthy detention and a trial process which fell short of the requirements of Article 6 of the European Convention on Human Rights. The United Kingdom courts dismissed his challenge (142 ILR 411).

The applicant applied to the European Court of Human Rights, contending that his deportation to Jordan would involve violations by the United Kingdom of its obligations under Articles 34 (prohibition of torture, inhuman and degrading treatment or punishment), 5 (right to liberty of person)5 and 6 (right to a fair trial)6 of the Convention. He also maintained that his treatment amounted to a violation of Article 3, taken together with Article 13.7

Held (unanimously):—The deportation of the applicant would not be in violation of Article 3 or Article 5 of the Convention, nor had there been

any violation of Article 3, taken in conjunction with Article 13. His deportation would, however, involve a violation of Article 6 on account of the real risk of the admission at his retrial of evidence which had been obtained by torture.

(1) It was legitimate for a State to take a firm stand against those involved in acts of terrorism. In that context, a State was entitled to deport non-nationals who threatened its national security. The obligations under Article 3 of the Convention, however, had an absolute character and prohibited the deportation of any person in respect of whom there were substantial grounds for believing that they faced a real risk of torture, inhuman or degrading treatment or punishment in the receiving State. It was not for the Court to rule on the propriety of one State seeking assurances from another that deported persons would be properly treated. The role of the Court was to determine, in each case, the effect of those assurances on the question whether there were substantial grounds for believing that the deportee would face a real risk of treatment incompatible with Article 3 if they were deported to the State which had given those assurances (paras. 183–9).

(2) The return of the applicant to Jordan would not involve a violation of Article 3. There were substantial grounds for believing that, without the assurances contained in the MoU, the applicant would face a real risk of ill-treatment if returned to Jordan. The question, therefore, was whether the assurances were sufficient to remove that risk. It could not be presumed that a State which did not comply with its multilateral obligations in respect of torture and ill-treatment would necessarily disregard bilateral assurances, nor did the general human rights situation in Jordan exclude accepting assurances from its government. The United Kingdom and Jordan had made genuine efforts to obtain and provide transparent and detailed assurances to ensure that the applicant would not be ill-treated and the product of their efforts was superior to any assurances previously considered by the Court. While the assurances might have been strengthened in various ways, the effect of the MoU was that the applicant's return to Jordan would not expose him to a real risk of ill-treatment (paras. 190–207).

(3) There had been no violation of Article 3, taken in conjunction with Article 13, merely because the Special Immigration Appeals Commission (‘SIAC’) in the United Kingdom had had before it closed evidence which had not been disclosed to the applicant. Article 13 did not place an absolute bar on domestic courts receiving closed evidence, provided that the applicant's interests were protected at all times before those courts. SIAC was a fully independent court which was entitled under United Kingdom law to receive closed evidence. There was no evidence that the scrutiny of that evidence by SIAC, assisted by special advocates, failed to give rigorous scrutiny to the applicant's claim (paras. 215–25).

(4) The return of the applicant to Jordan would not involve a violation of Article 5. There would be a violation of Article 5 if a State removed a person to another State in circumstances where there were substantial grounds to believe that that person faced a real risk of a flagrant breach of that provision. However, the evidence did not suggest that such substantial grounds existed in the present case (paras. 231–5).

(5) The return of the applicant to Jordan would involve a violation of Article 6. The test here was whether there were substantial grounds for believing that the applicant, if returned to Jordan, faced a real risk of a flagrant denial of justice. It was subject to the same standard and burden of proof as in Article 3 expulsion cases. The admission at a criminal trial of evidence obtained from third parties by the use of torture amounted to a flagrant denial of justice. The admission of such evidence was incompatible with fundamental principles of international law. In the present case, the applicant had met the burden of proof required to show that he faced a real risk that such evidence would be admitted at his retrial (paras. 258–87).

The following is the text of the judgment of the Court:

PROCEDURE

1. The case originated in an application (No 8139/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by a Jordanian national, Mr Omar Othman (‘the applicant’), on 11 February 2009.

2. The applicant was represented by Ms G. Peirce, a lawyer practising in London with Birnberg Peirce & Partners. She was assisted by Mr E. Fitzgerald QC, Mr R. Husain QC and Mr D. Friedman, counsel. The United Kingdom Government (‘the Government’) were represented by their Agent, Ms L. Dauban, of the Foreign and Commonwealth Office.

3. The applicant alleged, in particular, that he would be at real risk of ill-treatment contrary to Article 3 of the Convention, and a flagrant denial of justice, contrary to Article 6 of the Convention, if he were deported to Jordan.

4. On 19 February 2009 the President of the Chamber to which the application had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to remove the applicant to Jordan pending the Court's decision.

On 19 May 2009 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29(1)).

5. The applicants and the Government each filed written observations (Rule 59(1) of the Rules of Court). In addition, third-party comments were received from the non-governmental organisations Amnesty International, Human Rights Watch and JUSTICE, which had been given leave by the President of the Chamber to intervene...