Eric Metcalfe acted on behalf of the NGO intervener JUSTICE in the case of Othman v United Kingdom before the European Court of Human Rights. JUSTICE, jointly with Amnesty International and Human Rights Watch, had been granted leave by the Court to intervene in the proceedings, which concerned the UK government’s attempt to deport radical cleric Abu Qatada to Jordan, notwithstanding its ‘widespread and routine’ use of torture.
In Feburary 2009, the House of Lords unanimously upheld the earlier ruling of the Special Immigration Appeals Commission (‘SIAC’) that Othman – better known as Abu Qatada – could be safely returned to Jordan notwithstanding its well-known use of torture, on the strength of a Memorandum of Understanding between the UK and Jordan that promised that those returned would be humanely treated. The House of Lords also overturned the Court of Appeal ruling’s that Abu Qatada could not be deported on fair trial grounds, due to the likelihood that any subsequent trial in Jordan would involve reliance upon evidence obtained by torture.
The European Court upheld the House of Lord’s conclusion that Abu Qatada would not face a ‘real risk’ of ill-treatment contrary to Article 3 of the European Convention of Human Rights, despite considerable evidence of the use of torture by the Jordanian security forces, due to guarantees contained in the Memorandum of Understanding between the UK and Jordan. The Court also found that Abu Qatada had been able to challenge relevant evidence in proceedings before SIAC, notwithstanding its extensive reliance on closed material and the lack of sufficient disclosure to Abu Qatada of the case against him. However, the European Court agreed with the earlier conclusion of the English Court of Appeal that Abu Qatada’s removal to Jordan would involve a ‘flagrant denial of justice’, due to the existence of a ‘real risk’ that any trial in Jordan would involve the use of testimony from witnesses extracted under torture. The ruling provides important guidance concerning the reliance on governmental assurances against ill-treatment contrary to article 3 in the context of deportation, extradition and removal, as well as significant analysis of the ‘flagrant denial of justice’ test under articles 5 and 6 of the Convention.
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