26 May 2009
STATEMENT OF FACTS
1. The applicant, Mr Omar Othman (also known as Abu Qatada), is a Jordanian national who was born in 1960. He is currently in detention at HM Prison Long Lartin. He is represented before the Court by Ms G. Peirce, a lawyer practising in London with Birnberg Peirce & Partners, Solicitors.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was born near Bethlehem, then administered as part of the Kingdom of Jordan. He arrived in the United Kingdom in September 1993, having previously fled Jordan and gone to Pakistan. He made a successful application for asylum on the basis that he had been tortured by the Jordanian authorities. The basis for his asylum application was first, that he had been detained and tortured in March 1988 and 1990-1991 and second, that he had been detained and later placed under house arrest on two further occasions. The applicant was recognised as a refugee on 30 June 1994 and granted leave to remain until 30 June 1998.
On 8 May 1998 he applied for indefinite leave to remain. This application had not been determined before the applicant’s arrest on 23 October 2002. On that date he was taken into detention under the Anti-terrorism, Crime and Security Act 2001 (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 90, 19 February 2009). When that Act was repealed in March 2005, the applicant was released on bail and then made subject to a control order under the Prevention of Terrorism Act 2005 (ibid., §§ 83 and 84). On 11 August 2005, while his appeal against that control order was still pending, the Secretary of State served the applicant with a notice of intention to deport (see section 3, paragraph 6 below).
1. Previous criminal proceedings in Jordan
The case involved an allegation of a conspiracy to carry out bombings in Jordan which resulted in successful attacks on the American School and the Jerusalem Hotel in Amman in 1998. There were further convictions for offences of membership of a terrorist group, but these matters were the subject of a general amnesty. The applicant was sentenced to life imprisonment with hard labour at the conclusion of the trial.
During the trial, one witness, Mohamed al-Jeramaine, confessed that he and not the defendants had been involved in the attempted bombings. The State Security Court hearing the case took the view that his confession was false, and demonstrably so, because of discrepancies between what he said about the nature of the explosives, for example, and other technical evidence. Mr Al-Jeramaine was later executed for homicides for which he had been convicted in another trial.
The applicant maintains that the evidence against him was predominantly based upon an incriminating statement from a co-defendant, Abdul Al-Hamasher. In his confession to the State Prosecutor, Mr Al-Hamasher alleged that the applicant had provided prior encouragement for the attacks. He was also said to have congratulated the group after the attacks.
Mr Al Hamasher, along with several other defendants, had complained during the proceedings before the State Security Court that they had been tortured by the Jordanian General Intelligence Directorate (“the GID”), which shares responsibility for maintaining internal security and monitoring security threats in Jordan with the Public Security Directorate and the military. At the end of the period of interrogation during which they claimed to have been tortured, the State Prosecutor took a statement from each defendant.
At the trial there was evidence from lawyers and medical examiners and relatives of the defendants that there were visible signs of torture on the defendants. However, the State Security Court concluded that the defendants could not prove torture.
There were a number of appeals to the Court of Cassation and remittals back to the State Security Court, although, as the applicant had been convicted in absentia, no appeals were taken on his behalf. On the third appeal to the Court of Cassation, the convictions were upheld on the basis that the relevant statements had been made to the State Prosecutor. The confessions in those statements thus constituted sufficient evidence for conviction if the court accepted them and if the State Prosecutor was satisfied with the confessions. It rejected the claim that the State Prosecutor had to prove that the defendants had confessed to him of their own accord: the State Prosecutor’s obligation to prove that a confession was obtained willingly only arose where the confession had not been obtained by him. The confessions in question were authentic and there was no evidence that they had been made under financial or moral coercion.
The Court of Cassation then considered the impact of the allegations that the confessions to the State Prosecutor had resulted from coercion of the defendants and their families while they were in GID detention. Such conduct during an investigation was against the law and rendered the perpetrators liable to punishment. However, that would not nullify the confessions made to the State Prosecutor unless it were proved that those confessions were the consequence of illegal coercion to force the defendants to confess to things which they had not done. The defendants had not shown that was the case.
As a result of the applicant’s conviction in this trial, the Jordanian authorities requested the applicant’s extradition from the United Kingdom. In early 2000, the request was withdrawn by Jordan.
b. The millennium conspiracy trial
4. In the autumn of 2000 the applicant was again convicted in absentia in Jordan, this time in a case known as the “Millennium conspiracy”, which also concerned a conspiracy to cause explosions at western and Israeli targets in Jordan to coincide with the millennium celebrations. The conspiracy was uncovered before the attacks could be carried out. The applicant was alleged to have provided money for a computer and encouragement through his writings, which had been found at the house of a co-defendant, Mr Abu Hawsher. The applicant maintains that the main evidence against him was the testimony of Abu Hawsher,
Most of the defendants were convicted on most charges; some were fully or partly acquitted. The applicant was sentenced to 15 years’ imprisonment with hard labour. Other defendants, including Abu Hawsher, were sentenced to death. On appeal certain of the defendants, including, it appears, Abu Hawsher, claimed to have been tortured during 50 days of interrogation when they were denied access to lawyers. The Court of Cassation rejected this ground of appeal, holding that the minutes of interrogation showed that each defendant had been told of his right to remain silent about the charges unless their lawyer was present. The applicant also states that the Court of Cassation found alleged ill-treatment in GID custody was irrelevant because the State Security Court did not rely on the defendants’ confessions to the GID but their confessions to the State Prosecutor. Abu Hawsher remains under sentence of death.
The findings of the United Kingdom Special Immigration Appeals Commission’s (SIAC) in respect of the evidence presented at each trial are set out at paragraph 24 below.
2. The agreement of a memorandum of understanding (MOU) between the United Kingdom and Jordan
5. In October 2001, the Foreign and Commonwealth Office advised the United Kingdom Government that Article 3 of the Convention precluded the deportation of terrorist suspects to Jordan. In March 2003, after a Government review of the possibility of removing such barriers to removal, the Foreign and Commonwealth Office confirmed that its advice of October 2001 remained extant but that it was considering whether key countries would be willing and able to provide the appropriate assurances to guarantee that potential deportees would be treated in a manner consistent with the United Kingdom’s obligations. In May 2003, the Foreign Secretary agreed that seeking specific and credible assurances from foreign governments, in the form of memoranda of understanding, might be a way of enabling deportation from the United Kingdom.
In November 2003, the British Embassy in Amman was instructed to raise the idea of a framework memorandum of understanding (MOU) with the Government of Jordan. In February 2005, after meetings between the Prime Minister of the United Kingdom and the King of Jordan, and between the Secretary of State for the Home Department and the Jordanian Foreign Minister, agreement was reached on the principle of an MOU.
Further negotiations took place in June 2005 and an MOU was signed on 10 August 2005. That MOU set out a series of assurances of compliance with international human rights standards, which would be adhered to when someone was returned to one State from the other. The same day, a side letter from the United Kingdom Chargé d’Affaires, Amman, to the Jordanian Ministry of the Interior was signed. The side letter reiterated that, in cases of deportation where there was a significant risk of the death penalty being imposed, the United Kingdom Government’s policy was not to deport without assurances that it would not be sought or carried out but that they recognised a formal undertaking could not be given by Jordan “for constitutional reasons” (see paragraphs 42 and 43 below). In respect of the applicant, further questions as to the conduct of any retrial he would face after deportation were also put to the Jordanian Government and answered in May 2006 by the Legal Adviser at the Jordanian Ministry of Foreign Affairs.
The MOU also made provision for any person returned under it to contact and have prompt and regular visits from a representative of an independent body nominated jointly by the United Kingdom and Jordanian authorities. After a number of unsuccessful approaches to other non-governmental organisations, on 24 October 2005, the Adaleh Centre for Human Rights Studies (“the Adaleh Centre”) signed a monitoring agreement with the United Kingdom Government. On 13 February 2006, the terms of reference for the Adaleh Centre were agreed (see paragraph 44 below).
3. The applicant’s appeal against deportation
6. On 11 August 2005, the Secretary of State served the applicant with the notice of intention to deport. The applicant appealed against that decision arguing, inter alia, that it was incompatible with Articles 2, 3, 5 and 6 of the Convention. Relying on his previous asylum claim, he argued that his high profile would mean he would be of real interest to the Jordanian authorities. If returned, he would also face retrial for the offences for which he had been convicted in absentia. He would thus face lengthy pre-trial detention (in breach of Article 5) and, if convicted, would face a long term of imprisonment. All these factors meant he was at real risk of torture, either pre-trial or after conviction, to obtain a confession from him or to obtain information for other reasons. He was also at risk of the death penalty or rendition to other countries, such as the United States of America. Relying on Article 6, he alleged that his retrial would not be fair: the State Security Court lacked independence from the executive and there was a real risk that evidence obtained by torture – either of him, his co-defendants or prisoners – would be admitted against him. Finally, relying on Article 8, he alleged his deportation would be a disproportionate interference with his private and family life in the United Kingdom.
a. Proceedings before the SIAC
(i) The conduct of proceedings before SIAC and its national security findings
7. As the Secretary of State certified that the decision to deport the applicant was taken in the interests of national security, the applicant’s appeal was heard by the SIAC, which dismissed it on 26 February 2007. The appeal had been heard by SIAC in two parts: an “open session”, where the Secretary of State’s case and evidence was presented in the presence of the applicant and his representatives, and a “closed session” where parts of the Secretary of State’s case which could be disclosed for security reasons were presented (see paragraph 41 below). SIAC heard evidence in closed session relating to the process by which the MOU had been agreed, the extent to which it would mitigate the risk of torture and also evidence as to the national security threat the applicant was alleged to have posed to the United Kingdom (“closed material”). In the closed sessions, the applicant and his representatives were excluded but his interests were represented by special advocates. SIAC then delivered an “open judgment”, which is publicly available, and a “closed judgment”, which was given only to the Secretary of State and the special advocates.
8. In reaching its decision as to whether the applicant’s deportation was necessary in the interests of national security, SIAC stated that it had not taken into account either of the applicant’s Jordanian convictions in absentia, which were originally advanced as part of the Government’s case. The reason for this was that the Government adopted what was described as a “pragmatic approach” in withdrawing reliance upon any evidence which it was alleged might have been obtained by torture on the grounds that it would require an investigation as to whether it was obtained by torture. This was done in accordance the House of Lords’ ruling in A. and Others (No. 2) v Secretary of State for the Home Department  UKHL 41 to that effect (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 27, 19 February 2009). Despite this, SIAC found the national security basis for deportation to be “well proved” since the applicant was regarded by many terrorists as a spiritual adviser whose views legimitised acts of violence.
9. SIAC then reviewed the evidence it had heard from various sources including a senior United Kingdom diplomat, who gave evidence on the negotiation of the MOU, the monitoring agreement with the Adaleh Centre and on the risk faced by the applicant in Jordan. On behalf of the applicant, it heard evidence from three academics and an Arabic speaking barrister, the latter of whom had travelled to Jordan to conduct research on the previous two trials including interviews with the defendants and their lawyers. Additionally, it considered evidence of the United States Government’s interest in the applicant and allegations that a Jordanian national had been the subject of extraordinary rendition from Jordan to the United States.
(ii) SIAC’s findings on the MOU
10. SIAC found that this Court’s judgments in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996 V and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, ECHR 2005 I, showed that reliance could lawfully be placed on assurances; but the weight to be given depended on the circumstances of each case. There was a difference between relying on an assurance which required a State to act in a way which would not accord with its normal law and an assurance which required a State to adhere to what its law required but which might not be fully or regularly observed in practice. Referring to a decision of the United Nations Committee Against Torture, Agiza v. Sweden (see paragraph 45 below), where the Swedish authorities had expelled an Egyptian national after receiving assurances from Egypt, SIAC continued:
“The case of Agiza stands as a clear warning of the dangers of simple reliance on a form of words and diplomatic monitoring. There were already warning signs which ought to have alerted the Swedish authorities to the risks, including the role they had permitted to a foreign intelligence organisation. But we note what to us are the crucial differences: the strength, duration and depth of the bilateral relationship between the two countries by comparison with any that has been pointed to between Sweden and Egypt; the way in which the negotiations over the MOU have proceeded and the diplomatic assessment of their significance; the particular circumstances of [the present applicant] and Jordan; the degree of risk at the various stages, in the absence of the MOU, particularly at the early stages of detention which is when the risk from torture by the GID would normally be at its greatest and when the confirmed torture of Agiza in Egypt appears to have occurred; and the speed with which the monitors would be seeking and we believe obtaining access to the Appellant in those early days. The Swedes felt that to seek to see Agiza would betray a want of confidence in the Egyptians, whereas there is no such feeling in either the UK, the [Adaleh] Centre or the Jordanian Government. Quite the reverse applies. One aspect of that case which also troubled the [Committee Against Torture] was that Agiza had been removed without final judicial determination of his case. That would not be the position here.”
11. In the present case, the political situation in Jordan and freedom, albeit limited, of NGOs, the press and Parliament to express concerns would reduce the risks the applicant faced. In addition, the level of scrutiny Jordan had accepted under the MOU could not but show that it was willing to abide by its terms and spirit. Each country had a real interest in preventing breaches of the MOU: the diplomatic relationship between the United Kingdom and Jordan was friendly and long-standing and of real value to Jordan and it would have a real incentive to avoid being seen as having broken its word. Both countries had an interest in maintaining co-operation on counter-terror matters. The United Kingdom had a very real concern that it should be able to remove foreign nationals without breaching their rights under Article 3, so failure in such a highly publicised case would be a major setback for that process. That concern would thus act as a further incentive to investigate any breaches of the MOU. While the MOU did not specify what steps would be taken in such an investigation, SIAC accepted evidence from the senior United Kingdom diplomat that any failure of the Jordanian Government to respond to diplomatic queries would lead to “rapidly escalating diplomatic and Ministerial contacts and reactions”.
12. SIAC accepted that there were some weaknesses in the MOU and monitoring provisions. Some protections, such as prompt access to a lawyer, recorded interviews, independent medical examinations and prohibition on undisclosed places of detention, were not explicitly present but, in reality, most of these aspects were covered. There was no guarantee that access to the applicant, as required by the Adaleh Centre’s terms of reference, would always be granted but any refusal would be brought to light quite quickly; in the early period of detention, the Centre was expected to visit the applicant three times a week. SIAC also expected the GID and the Jordanian Government to react swiftly to any approach by the United Kingdom were a visit to be refused. Evidence that the United Nations Special Rapporteur on Torture had been refused access to a GID facility in June 2006, despite a prior arrangement that he would be permitted free access, was “disturbing”, but on the evidence it had heard (see paragraph 14 below) there was no real risk of ill-treatment by the GID. There was a further weakness in the Adaleh Centre’s “relative inexperience and scale”; it would be undertaking a task which would be new to it; and it did not have the expertise among its staff, as it had recognised. It was a fairly new body with limited resources and staff, although this could be overcome and the United Kingdom Government would bear the cost. It was the very fact of monitoring visits which was important and the absence of specialist expertise was not fatal to their value.
(iii) SIAC’s findings on Article 3
13. The United Kingdom Government did not contest the general thrust of the available material in relation to Jordan’s human rights record and, in SIAC’s view, details of human rights violations in Jordan remained relevant to the assessment of the risk faced by the applicant. The Government also took the position that it could not return the applicant to Jordan, in conformity with its international obligations, in the absence of the particular measures contained in the MOU. Nevertheless, SIAC found it important to consider the risks faced by the applicant by reference to the likely sequence of events if he were to be returned. It found that the MOU might not be necessary for each risk but rather reinforce the protection available.
14. SIAC accepted that, on return, the applicant would be taken into the custody of the GID and retried on the two charges for which he had been convicted in absentia. He would be accompanied by a representative of the Adaleh Centre to his place of detention and be medically examined. SIAC also accepted that the GID would interrogate the applicant with a view to obtaining a confession for use at trial and for more general intelligence purposes, though SIAC found it to be speculative that GID would interrogate the applicant about other offences in order to bring further charges against him. There was no evidence of any other charges outstanding. SIAC also accepted that the United States would seek to question the applicant and that this would take place soon after his arrival in Jordan. However, there was no real risk that Article 3 would be breached before the conclusion of the retrial.
There was a real risk of torture or ill-treatment of an “ordinary Islamist extremist” in GID detention before charge since such ill-treatment was widespread and longstanding and there was a climate of impunity and evasion of international monitoring in the GID. However, the applicant would be protected by his high profile, by the MOU and the monitoring agreement, especially since the Adaleh Centre would be “keen to prove its mettle” and would itself be subject to the vigilance of other non-governmental organisations. This would also prevent any real risk of the use by the GID of tactics such as last-minute refusals of access, claims that the applicant did not wish to see the monitors or moving him elsewhere without notification. Access by the Adaleh Centre would also prevent the applicant’s incommunicado detention.
The MOU would also counteract the climate of impunity prevailing in the GID and toleration of torture by its senior members. The MOU and the monitoring arrangements were supported at the highest levels in Jordan – the King of Jordan’s political power and prestige were behind MOU – so it was reasonable to assume that instructions on how to treat the applicant had been given to the GID and it would be aware that any breaches would not go unpunished. Moreover, senior members of the GID had participated in the MOU negotiations and therefore would know the consequences of any failure to comply. Even if abuses were normally the work of rogue officers, the specific and unusual position of the applicant and the effect of the MOU would lead to senior officers preventing ill-treatment in his case, even if they did so only out of self-interest.
15. Questioning by the United States was not forbidden by the MOU and, to SIAC, it was probable that the CIA would be allowed to question the applicant directly with the GID present. However, the United Kingdom would have made clear to the United States its interests in ensuring that the MOU was not breached. The Jordanian authorities and United States would be careful to ensure that the United States did not “overstep the mark”. Assuming that the applicant remained in GID custody and was not surrendered to the United States, there would be no real risk of ill-treatment at the pre-trial stage. It was also highly unlikely that the applicant would be placed in any secret GID or CIA detention facility in Jordan.
16. The same factors applied to any questioning which might take place soon after the conviction or acquittal of the applicant. The MOU would continue to apply and it would be in the interests of both the Jordanians and the Americans to conduct any interrogation at the earliest opportunity rather than wait until after trial. The applicant’s high profile was also found to be “unlikely to diminish much for some years”.
17. Equally, there was little likelihood of the Jordanian authorities bringing any subsequent charges which carried the death penalty or seeking the death penalty in respect of the charges for which the applicant was to be retried. The side letter relating to the death penalty had been agreed at the highest levels and allowed the United Kingdom Government to raise any such sentence at the ministerial level or higher. It would be astonishing if such an intervention were unsuccessful, particularly when it was unlikely that any sentence would be passed and sustained on appeal.
18. If convicted, SIAC found the applicant would face a lengthy period of imprisonment. There was a real risk of a life sentence in respect of the Reform and Challenge conspiracy, although there was a greater prospect that it would be considerably less because of the way in which sentences on the other defendants appeared to have been reduced on appeal, to 4 or 5 years. There was no real risk of a life sentence in the Millennium plot retrial. That was the maximum possible sentence and there was no rule that would prevent a higher sentence being imposed than the 15 year sentence that had been imposed in absentia. However, the clear practice was against imposing higher sentences in retrials following initial convictions in absentia and there was no reason why a more unfavourable view would be taken of the applicant when he was present than when he was absent. The applicant would serve any sentence in an ordinary prison and not GID detention; the sentence of hard labour did not connote any additional punishment. General conditions would not breach Article 3 and, although beatings sometimes occurred, there was no evidence that the applicant would be targeted as a political Islamist prisoner. His status would again act to protect him.
19. In respect of rendition, there were “powerful incentives” for the Jordanian and United States Governments not to allow this to happen, not least the real domestic political difficulties this would create for the Jordanian Government and the unwillingness of the United States to destabilise the Jordanian regime. Any instances of alleged rendition from Jordan had involved people of other nationalities or, in one case, of a dual US/Jordanian national. It was also very unlikely that the applicant would be removed to a secret CIA facility in Jordan since this would require the connivance of the Jordanian authorities contrary to the MOU. It was also unlikely that the United States Government would seek the extradition of the applicant from Jordan when it had not sought his extradition from the United Kingdom and there would be political difficulties for Jordan to accede to such a request.
(iv) SIAC’s findings on Article 5
20. In relation to the applicant’s detention following his removal to Jordan, SIAC found that the time limits for notifying the legal authorities of an arrest (48 hours) and for bringing formal charges (15 days) were regularly and lawfully extended by the courts at the request of the prosecutor, in stages of up to 15 days to a maximum of 50 days. It would not be incompatible therefore with Jordanian law for the applicant to be held in detention for 50 days without being physically brought before a court before being charged. Such extensions were approved by a judicial authority, although not necessarily in the physical presence of the suspect.
SIAC noted that the MOU did not explicitly require that there be no extensions of time beyond the initial 15 day detention but required that a returned person be brought promptly before a judge or other person authorised by law to determine the lawfulness of his detention and that the detainee had to be informed promptly of the reasons for arrest and of any charge. Though “promptly” was not defined in the MOU, SIAC found that this part of the MOU would be carried out, particularly since this was one of the earliest points at which the MOU would be engaged, and that the applicant’s first appearance before a judicial authority would be within 48 hours. This would be more favourable treatment than was normally accorded in State Security Court cases but was in accordance with Jordanian law. It would not breach the MOU if the applicant were to be detained for a maximum of 50 days, by means of judicially approved 15 day extension, or if he were absent when those later decisions were taken. However, in reality the total period of 50 days was unlikely to be sought, even without the MOU, because the applicant faced a retrial and the case dossiers had already been through the trial and appeal process a number of times. There would also be every incentive on the Jordanian Government, to show that it was providing what it had agreed, and that the applicant was not being ill-treated. While there was evidence that the maximum 50 day detention was unlawfully exceeded by the GID and that torture might occur during GID detention before someone was brought before a prosecutor, this risk would not apply to the applicant for the same reasons.
(v) SIAC’s findings on Article 6
21. It was common ground before SIAC that the applicant had twice been tried and convicted in absentia in Jordan on terrorist charges (on both occasions as one of a number of defendants), and that on his return those convictions would be set aside and he would face retrial before the State Security Court on the same charges.
22. In addition to his two challenges to the retrial process (the impartiality of the State Security Court and the use of evidence obtained by torture) the applicant also argued that he would be questioned in detention without the presence of a lawyer by the GID, United States officials or the State Prosecutor. The latter had the power under Article 64(3) of the Jordanian Criminal Trial Procedures Code to conduct an investigation in the absence of a lawyer “whenever he [deemed] it necessary in order to reveal the truth” and this decision was not subject to review, though SIAC also noted that a confession before the prosecutor was not admissible unless the individual had been warned that he need not answer questions without his lawyer present. SIAC thought it unlikely that the applicant would have a lawyer present during questioning by the GID or United States officials but very likely he would have access to a lawyer for any appearance before a judge. SIAC continued:
“There is no requirement in the MOU that he have a lawyer present for any questioning by the State prosecutor, but it is difficult now to see why any of the domestic provisions enabling a lawyer’s presence to be dispensed with before the prosecutor could apply to charges relating to events some 6-8 years ago. We would be very surprised if he lacked for legal advice and representation acceptable to him and would expect the prosecutor, for the same general reasons which we have given, to be scrupulously careful about questioning the Appellant in the absence of the lawyer.”
In terms of pre-trial preparation by the defence, the period and facilities available would be less extensive than in the United Kingdom but nonetheless better than would normally be the case in Jordan.
23. With regard to the trial and the applicant’s first challenge on the basis of the lack of independence and impartiality of the State Security Court, SIAC found that that court would consist of three judges, at least two of whom would be legally qualified military officers with no security of tenure. The State Prosecutor would also be a military officer. Appeal would lie to the Court of Cassation, a civilian court, though that court could not hear argument on any unfairness of the trial arising from the military composition of the State Security Court. The MOU was found to be of no direct relevance to this claim: it required the trial to be fair but the trial could only be before the State Security Court. On this aspect of Article 6 SIAC concluded:
“432. Although a military court can be an independent judicial body, even when trying a civilian, such a trial process calls for a ‘particularly careful scrutiny’ Ergin v. Turkey (no. 6), [no. 47533/99, § ..., ECHR 2006 ... (extracts)]. But the more common emphasis is on the lack of independence of a military court by the nature of its composition; see e.g. Incal v Turkey (2000) EHRR 32. The objectionable features normally inherent in a military court are the holding of a military rank which puts the judge under the control of the executive, subject to military discipline and assessment, appointed and removable by the executive. Those features are present here: the judges hold military rank; they are appointed by the executive on the recommendation of the Head of the Joint Chiefs of Staff; they are removable by the executive. We have no information on their security of tenure. Although we accept that they are career military lawyers, legally trained, and that they are not ordinary officers seconded to a judicial post, their appointment, its duration, and promotion prospects are subject to the decision of the executive in which the Head of the Joint Chiefs of Staff has a powerful say. We do not know how panels are selected. The minority civilian judge is also subject to executive appointment in circumstances which say nothing about his security of tenure or the duration of any posting to the SSCt [State Security Court]. The Higher Judicial Council which deals with assignments is under Ministry of Justice control.
433. The Prosecutor is not independent for the same reasons. The fact that the Prosecutor and the majority of the judges are part of the same military hierarchy does not add to the appearance of justice or independence.
434. This lack of independence cannot be cured by the independence of the Court of Cassation. We do not have specific evidence about the appointments to that Court but it has not been the subject of complaint about its independence in the same way. However, it cannot hear submissions about the independence of the SSCt. It can correct errors of law, approach and procedure and it can review findings of fact but it does not hear the cases afresh apart from prosecution appeals. The precise boundaries of its factual review are not wholly clear. [Counsel for the applicant] is right that the lack of independence of the SSCt, as the trial court, cannot be cured by the availability of a right of appeal; De Cubber v Belgium 7 EHRR 236; Findlay v UK 24 EHRR 221. Other defects might be cured by appeal however.”
24. As to the potential use of evidence obtained by torture in the applicant’s retrial, SIAC found it extremely unlikely that the applicant would succeed in showing that the earlier rulings of the Jordanian courts should be changed and there was, therefore, a high probability that the past statements made to the State Prosecutor which incriminated the applicant would be admitted. It also found that the evidence showed there was at least a very real risk that those statements were obtained as a result of treatment by the GID which breached Article 3 of the Convention and may or may not have amounted to torture. It further found that those statements would be of considerable, perhaps decisive, importance against him. On this aspect of the retrial, SIAC held:
“To us, the question comes back to whether or not it is unfair for the burden of proof in Jordan to lie where it does on this issue; we do not think that to be unfair in itself. However, this burden of proof appears to be unaccompanied by some of the basic protections against prior ill-treatment or means of assisting its proof eg video or other recording of questioning by the GID, limited periods of detention for questioning, invariable presence of lawyers, routine medical examination, assistance from the Court in calling relevant officials or doctors. The decisions are also made by a court which lacks independence and does not appear to examine closely or vigorously allegations of this nature. It is taking these points in combination which leads us to conclude that the trial would be likely to be unfair within Article 6 because of the way the allegations about involuntary statements would be considered.”
25. SIAC concluded that, despite its findings in respect of the independence and impartiality of the State Security Court and the real risk of the admission of evidence obtained contrary to Article 3, there would be no flagrant denial of justice under Article 6 of the Convention if the applicant were retried in Jordan. SIAC stated that the retrial would take place “within a legally constructed framework covering the court system, the procedural rules and the offences”, the applicant would be present and it would be in public. The dossier from the original trial would be before the retrial court but the applicant could effectively challenge its contents. The execution of Al-Jeramaine and the difficulty faced by other witnesses, notably Abu Hawsher, would not make the retrial unfair. SIAC concluded:
“446. We accept the lack of institutional independence in the SSCt. The lack of independence for SSCt Judges is in the structure and system. There is no evidence as to why particular judges might be chosen for particular cases, or that they are “leaned on”. But the SSCt is not a mere tool of the executive: there is sound evidence that it appraises the evidence and tests it against the law, and acquits a number of defendants. It has reduced sentences over time.
447. Its judges have legal training and are career military lawyers. There is a very limited basis beyond that for saying that they would be partial, and that has not been the gravamen of the complaint. Their background may well make them sceptical about allegations of abuse by the GID affecting statements made to the Prosecutor. They may instinctively share the view that allegations of ill-treatment are a routine part of a defence case to excuse the incrimination of others. The legal framework is poorly geared to detecting and acting upon allegations of abuse. The way in which it approaches the admission of evidence, on the material we have, shows no careful scrutiny of potentially tainted evidence. There would be considerable publicity given to the retrial and public trials can encourage greater care and impartiality in the examination of the evidence. This would not be a mere show trial, nor were the first trials; nor would the result be a foregone conclusion, regardless of the evidence.
448. Reasons are given for the decisions, and an appeal to the Court of Cassation is available. The fact that such an appeal cannot cure the want of structural independence in the SSCt is not a reason for discounting its existence in the overall assessment of whether there would be a complete denial of Article 6 rights. This Court is a civilian court and the evidence of undue executive influence through appointment or removal is quite sparse. There is no evidence again as to how its panels are chosen, nor that they are “leaned on” by the executive. It plainly operates as a corrective to the rulings of the SSCt on law and procedure, and is of some relevance to factual matters, even though it does not hear the evidence all over again or have a full factual jurisdiction except on Prosecutors’ appeals. The probable sentences are not wholly disproportionate to the offences.
449. We have discussed at length the approach of the SSCt to the admission of statements to a prosecutor allegedly given as a result of prior ill-treatment. Although we take the view that a contribution of factors would probably make the retrial unfair in that respect, they do not constitute a complete denial of a fair trial. The existence of a legal prohibition on the admissibility of such evidence cannot be ignored, nor the fact that the SSCt would hear evidence relating to the allegations. The role of the Court of Cassation in reviewing and at times overturning the conclusions of the SSCt on this issue is material. The want of evidential or procedural safeguards to balance the burden of proof, and the probable cast of mind towards statements made to a prosecutor/judge in a civil law system, all within a security court dominated by military lawyers, does not suffice for a complete denial of justice.
450. There is a danger, given the inevitable focus on what is said to be potentially unfair about the retrial, in focussing exclusively on deficiencies when deciding whether there would be a total denial of the right to a fair trial, rather than looking at the picture of the trial as a whole. That is what has to be done however and it is that picture as a whole which has led us to our conclusion on this issue.
451. The various factors which would be likely to cause the retrial to breach Article 6 are to a considerable degree interlinked. Taking them in the round does not persuade us that there is a real risk of a total denial of the right to a fair trial.”
26. SIAC also found that it would be too narrow to exclude the nature of the potential sentence trial from consideration of whether a trial constituted a total denial of justice: a trial which led to the death penalty might have to be less unfair than one which led simply to a large fine. However, in the present case, while there was the real prospect of a long term of imprisonment, this did not alter SIAC’s conclusion that the overall nature of the retrial would not be a total denial of the applicant’s rights. SIAC also noted that a breach of Article 6 could lead to a breach of other Convention rights, for example a breach of Article 5 if that trial led imprisonment. However, for Article 3, if the conditions of detention did not breach Article 3 after a fair trial, they would not breach that Article after a wholly unfair trial.
27. The applicant’s appeal based on Article 8 was also dismissed.
b. Proceedings before the Court of Appeal
28. The applicant appealed to the Court of Appeal, which gave judgment on 9 April 2008, allowing the appeal in respect of Article 6 and the risk of the use of evidence obtained contrary to Article 3 and dismissing it on all other grounds.
For the applicant’s complaints under Article 3 as to the use of closed evidence by SIAC and the reliance on the MOU, the Court of Appeal considered it was bound by its previous ruling on these questions in MT (Algeria), RB (Algeria), U (Algeria) v. the Secretary of State for the Home Department  EWCA Civ 808. It also rejected the applicant’s appeals based on Article 3 and the imposition of whole life imprisonment arising out of an unfair trial, and on Article 5 and whether he would be brought promptly before a judge in Jordan.
29. For Article 6, the Court of Appeal rejected the applicant’s argument that there was a real risk of a “flagrant denial of justice” in his retrial in Jordan by reason of a lack of independence and or impartiality in the State Security Court: SIAC had been entitled to find as it did on this point and this conclusion was not altered by the later decision of this Court in Al-Moayad v. Germany (dec.), no. 35865/03, 20 February 2007.
30. However, the Court of Appeal accepted the applicant’s argument that there was a real risk that he would suffer a “flagrant denial of justice” by reason of the risk that statements obtained treatment contrary to Article 3, would be admitted as evidence against him in his retrial. The Court of Appeal observed:
“45. SIAC understated or misunderstood the fundamental nature in Convention law of the prohibition against the use of evidence obtained by torture. Counsel for the Secretary of State said that it was no part of his submission to say that if it is clear that a trial will take place on the basis of evidence obtained under torture, whether of the individual themselves, or third parties, that that would not involve flagrant denial of justice. Accordingly, once SIAC had found as a fact that there was a high probability that evidence that may very well have been obtained by torture (SIAC, § 436); or in respect of which there was a very real risk that it had been obtained by torture or other conduct breaching article 3 (SIAC, § 437); would be admitted at the trial of Mr Othman; then SIAC had to be satisfied that such evidence would be excluded or not acted on. The grounds relied on by SIAC for not finding a threatened breach of article 6 in that respect were insufficient.
48. The use of evidence obtained by torture is prohibited in Convention law not just because that will make the trial unfair, but also and more particularly because of the connexion of the issue with article 3, a fundamental, unconditional and non-derogable prohibition that stands at the centre of the Convention protections. As the ECtHR put it in §105 of its judgment in Jalloh v Germany 44 EHRR 32:
‘incriminating evidence-whether in the form of a confession or real evidence-obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture-should never be relied on as proof of the victim’s guilt, irrespective of its probative value. Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Art.3 of the Convention sought to proscribe or, as it was so well put in the US Supreme Court’s judgment in the Rochin case 342 US 165, “to afford brutality the cloak of law”.’
That view, that the use of evidence obtained by torture or ill-treatment is prohibited not just, or indeed primarily, because of its likely unreliability, but rather because the state must stand firm against the conduct that has produced the evidence, is universally recognised both within and outside Convention law.
49. SIAC was wrong not to recognise this crucial difference between breaches of article 6 based on this ground and breaches of article 6 based simply on defects in the trial process or in the composition of the court. Rather, in its conclusions in §§ 442-452 of its determination... it treated the possible use of evidence obtained by torture pari passu with complaints about the independence of the court: see in particular SIAC at §§ 449-450. That caused it not to recognise the high degree of assurance that is required in relation to proceedings in a foreign state before a person may lawfully be deported to face a trial that may involve evidence obtained by torture.”
31. The Court of Appeal also found that once SIAC had found there was a very real risk of evidence in breach of a “fundamental prohibition of the Convention” being adduced, it was necessary for SIAC to satisfy itself that a further risk, that such evidence would be acted on by the Jordanian court, could be excluded. The Court of Appeal examined SIAC’s findings as to the procedures before the State Security Court and the Court of Cassation and referred in particular to SIAC’s own concern as to the difficulties in proving that evidence had been obtained by torture. For the Court of Appeal, this concern was “amply justified by the litany of lack of the basic protections against prior ill-treatment”. It also criticised “SIAC’s disturbing failure to give proper weight to the findings as to the defects in the [State Security Court]” and concluded:
“It was not open to SIAC to conclude on that evidence that the risk of the total denial of justice that is represented by the use of evidence obtained by torture had been adequately excluded. SIAC could not have so concluded if it had properly understood the status in Convention law of this aspect of article 6.”
c. Proceedings before the House of Lords
32. The Secretary of State appealed to the House of Lords and the applicant cross-appealed in relation to his other Convention complaints. The House of Lords gave judgment on 18 February 2009 allowing the Government’s appeal and dismissing the applicant’s cross-appeals. The appeal was heard with the appeals of two of the appellants in MT (Algeria), RB and U (see paragraph 28 above), so the House of Lords also considered the use of closed material and the reliance on assurances contained in the MOU.
(i) Article 3: the “closed” proceedings before SIAC
33. Lord Phillips held that SIAC was lawfully entitled to consider closed material in evaluating safety on return and there were cogent considerations of policy for doing so. A distinction had to be drawn between closed material on safety on return and the use of closed material in other proceedings, for example to establish the national security threat posed by an individual. For the former, the individual would normally be aware of the nature of any risk on return and, in any event, it was for the individual himself, and not the State, to make out his case on whether he would be at risk on return. It was not likely to be critically important for a special advocate to be able to obtain input from the person to be deported in relation to closed evidence. As regards the impracticality of obtaining an appropriate expert witness with security clearance to see the material, Lord Phillips did not regard the problem as unfair. SIAC’s rules of procedure enabled the special advocate to ask SIAC to call for more evidence and SIAC, as an expert tribunal, could be relied upon “to make a realistic appraisal of the closed material in the light of the special advocate’s submission”. In respect of the assurances, Lord Phillips endorsed the view that the assurances contained in the MOU had to be disclosed but details of the negotiations leading to the MOU could be closed material.
Lord Hoffmann rejected the applicant’s argument on the more fundamental basis that he viewed this Court’s case-law as making it clear that the determination whether a deportation order might infringe Article 3 did not require “the full judicial panoply of article 6 or even 5(4)”. Citing Chahal, he emphasised that all was required was “independent scrutiny of the claim”, which had occurred in the applicant’s case.
Lord Hope agreed, albeit accepting that this Court had not yet had the opportunity to analyse whether the SIAC system met the requirements of the Convention. In his view, it did so.
Lord Brown also agreed, emphasising that with regard to safety on return, no case was being made against the applicant; rather it was he who was making a case against the returning state.
(ii) Article 3: assurances and the MOU
34. Lord Phillips (with whom the other Law Lords agreed) construed the this Court’s case-law from Mamatkulov onwards as treating assurances “as part of the matrix that had to be considered” when deciding whether there were substantial grounds for believing that the applicant would face treatment contrary to Article 3. He referred to the “abundance” of international law material, which supported the proposition that assurances should be treated with scepticism if they are given by a country where inhuman treatment by State agents was endemic. However, for Lord Phillips this came “close to a ‘Catch 22’ proposition that if you need to ask for assurances you cannot rely on them”. In rejecting that proposition, he held that the only basis to interfere with the view of SIAC was if its conclusions that the assurances could be relied upon were irrational and SIAC’s conclusions in the present case were not.
(iii) Article 5
35. The House of Lords unanimously refused to interfere with the finding of SIAC that the applicant’s exposure under Jordanian law to 50 days’ detention without access to a court or a lawyer, would not arise.
(iv) Article 6
“136. This is neither an easy nor an adequate test of whether article 6 should bar the deportation of an alien. In the first place it is not easy to postulate what amounts to ‘a complete denial or nullification of the right to a fair trial’. That phrase cannot require that every aspect of the trial process should be unfair. ... What is required is that the deficiency or deficiencies in the trial process should be such as fundamentally to destroy the fairness of the prospective trial.
137. In the second place, the fact that the deportee may find himself subject in the receiving country to a legal process that is blatantly unfair cannot, of itself, justify placing an embargo on his deportation. The focus must be not simply on the unfairness of the trial process but on its potential consequences. An unfair trial is likely to lead to the violation of substantive human rights and the extent of that prospective violation must plainly be an important factor in deciding whether deportation is precluded.”
Having reviewed, the relevant case-law of this Court, including Bader and Kanbor v. Sweden, no. 13284/04, § 42, ECHR 2005 XI, which he took to exemplify the need to consider the risk of a violation of Article 6 in combination with other Articles such as Articles 2 and 3, Lord Phillips found:
“[T]he Strasbourg jurisprudence, tentative though it is, has led me to these conclusions. Before the deportation of an alien will be capable of violating article 6 there must be substantial grounds for believing that there is a real risk (i) that there will be a fundamental breach of the principles of a fair trial guaranteed by article 6 and (ii) that this failure will lead to a miscarriage of justice that itself constitutes a flagrant violation of the victim’s fundamental rights.”
In the present case, the second limb was met by the potential sentences of imprisonment the applicant faced. For the first limb, Lord Phillips concluded that, although the military constitution of the Jordanian State Security Court would render the trial contrary to Article 6 if it was held in a Convention State, he agreed with SIAC and the Court of Appeal, that it could not amount to a “flagrant denial of justice” sufficient to prevent deportation in a removal case.
For the admission of evidence of which there was a real risk it had been obtained by torture, Lord Phillips held that the Court of Appeal erred in requiring too high a degree of assurance that evidence that might have been obtained by torture would not be used in a foreign trial. He stated:
“[T]he prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because ‘the state must stand firm against the conduct that produced the evidence’. That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan... The issue before SIAC was whether there were reasonable grounds for believing that if Mr Othman were deported to Jordan the criminal trial that he would there face would have defects of such significance as fundamentally to destroy the fairness of his trial or, as SIAC put it, to amount to a total denial of the right to a fair trial. SIAC concluded that the deficiencies that SIAC had identified did not meet that exacting test. I do not find that in reaching this conclusion SIAC erred in law.”
37. Lord Hoffmann found that there was no Convention authority for the rule that, in the context of the application of Article 6 to a removal case, the risk of the use of evidence obtained by torture necessarily amounted to a flagrant denial of justice.
38. Lord Hope agreed. He accepted that this Court had adopted an “uncompromising approach” to the use at a trial of evidence obtained by torture but the evidence before SIAC did not come up to that standard. There were allegations but no proof. The assertion that there was a real risk that the evidence was obtained by torture was not enough to prohibit removal. He recalled SIAC’s findings that the retrial would probably not comply with Article 6 if Jordan were a party to the Convention but would take place within a legally constructed framework. There was sound evidence that the State Security Court, which was not a mere tool of the executive, appraised the evidence and tested it against the law. SIAC had therefore been entitled to find as it did on the evidence.
39. Lord Brown agreed with Lord Phillips and, referring to the majority of the Grand Chamber in Mamatkulov, cited above, stated: “if extradition was not unlawful even in the circumstances arising there, in my judgment expulsion most certainly is not unlawful here.”
40. Lord Mance, who agreed with the other Law Lords on Article 6 and all other points of appeal, noted a considerable resemblance between the concept of “flagrant unfairness” in this Court’s case-law and the concept of denial of justice in public international law generally. For the latter, the modern consensus was that the factual circumstances had to be egregious for state responsibility to arise in international law.
B. Relevant domestic law and practice
1. SIAC’s procedures
Under section 2(1) of the Special Immigration Appeals Commission Act 1997, appeal to SIAC lies in respect of immigration decisions, including decisions to deport, when the Secretary of State’s decision is taken wholly or partly on grounds of national security or wholly or partly in reliance on information which in the Secretary of State’s opinion should not be made public in the interests of national security, the interests of the relationship between the United Kingdom and any other country, or otherwise in the public interest.
As was also stated in A. and Others, ibid., § 92, SIAC has a special procedure which enables it to consider not only material which can be made public (“open material”) but also other material which cannot (“closed material”). Neither the appellant nor his legal advisor can see the closed material. Accordingly, one or more security-cleared counsel, referred to as “special advocates”, are appointed by the Solicitor General to act on behalf of the appellant.
Rule 4 of Special Immigration Appeals Commission (Procedure) Rules 2003 (“the 2003 Rules”) governs the use of closed material and states:
“4(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.
(2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).
(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.”
Rule 37(3)(c) directs that when serving closed material upon the special advocate, the Secretary of State must also serve a statement of the material in a form which can be served on the appellant, if and to the extent that it is possible to do so without disclosing information contrary to the public interest.
Rule 38 provides that special advocate may challenge the Secretary of State’s objections to disclosure of the closed material. SIAC may uphold or overrule the Secretary of State’s objection. If it overrules the objection, it may direct the Secretary of State to serve on the appellant all or part of the closed material which he has filed with the SIAC but not served on the appellant. In that event, the Secretary of State shall not be required to serve the material if he chooses not to rely upon it in the proceedings.
A search is carried out for ‘exculpatory material’, that is, material that will advance the case of an appellant or detract from the case of the Secretary of State. Exculpatory material is disclosed to the appellant save where this would not be in the public interest. In that event it is disclosed to the special advocate.
Section 7 of the 1997 Act confers a right of appeal to the Court of Appeal against a final determination of an appeal made by SIAC in England and Wales “on any question of law material to that determination”.
2. Arrangements between the United Kingdom and Jordan
a. The MOU and side-letter
42. The title of the MOU agreed between the United Kingdom Government and the Government of Jordan refers to the regulation of the “provision of undertakings in respect of specified persons prior to deportation”.
It is stated that the MOU will apply to “any person accepted by the receiving state for admission to its territory following a written request by the sending state”. Such a request may be made in respect of any citizen of the receiving state who is no longer entitled to remain in the sending state. The MOU further states that, to enable a decision to be made on whether or not to return a person, the receiving state: “will inform the sending state of any penalties outstanding against the subject of a request, and of any outstanding convictions or criminal charges pending against him and the penalties which could be imposed”. Requests may include requests for further specific assurances by the receiving state if appropriate in an individual case.
The MOU then states that it is understood that the authorities of each state will comply with their human rights obligations under international law regarding a person returned under the MOU. When someone has been accepted under the terms of the MOU, the conditions set out in paragraphs 1-8 of the MOU will apply, together with any further specific assurances provided by the receiving state. Paragraphs 1 to 5 provide as follows:
“1. If arrested, detained or imprisoned following his return, a returned person will be afforded adequate accommodation, nourishment, and medical treatment and will be treated in a humane and proper manner, in accordance with internationally accepted standards.
2. A returned person who is arrested or detained will be brought promptly before a judge or other officer authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided.
3. A returned person who is arrested or detained will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him.
4. If the returned person is arrested, detained or imprisoned within 3 years of the date of his return, he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities. Such visits will be permitted at least once a fortnight, and whether or not the returned person has been convicted, and will include the opportunity for private interviews with the returned person. The nominated body will give a report of its visits to the authorities of the sending state.
5. Except where the returned person is arrested, detained or imprisoned, the receiving state will not impede, limit, restrict or otherwise prevent access by a returned person to the consular posts of the sending state during normal working hours. However, the receiving state is not obliged to facilitate such access by providing transport free of charge or at discounted rates.”
Paragraph 6 guarantees the right to religious observance in detention and paragraph 7 provides for the right to a fair trial for a returned person in terms similar to Article 6 § 1 of the Convention. Paragraph 8 replicates Article 6 § 3, omitting references to paragraphs (a) and (e) of that Article.
The MOU states that either government may withdraw from the MOU by giving 6 months notice but it will continue to apply to anyone who has been returned.
“During our discussions on the MOU we agreed that it would be right to exchange letters on the use of the death penalty on which, for constitutional reasons, the Government of Jordan has been unable to give an undertaking in the MOU itself. This letter, and the Government of Jordan’s formal response to it, set out the joint understanding of our two Governments on this issue.
The British Government is opposed to the use of the death penalty in all circumstances. We would not return a person to Jordan if that person faced significant risk of the death penalty on return. If a person returned to Jordan is, at any time after his return, subsequently sentenced to death, the British Government would consider asking the Jordanian Government to commute the sentence.
The Government of Jordan has indicated that it would be open to the Government of Jordan to give a specific assurance in relation to a particular case. Such specific assurances being sought by either Government is recognised in the MOU itself (7th paragraph under application and scope). The British Government records here that it may well seek a specific assurance on this issue in relation to particular cases.”
b. The terms of reference for the Adaleh Centre
44. The terms of reference for the Adaleh Centre (the monitoring body) provide that it must be operationally and financially independent of the receiving State and must be able to produce frank and honest reports. The terms of reference also state that it must have capacity for the task, with experts (“Monitors”) trained in detecting physical and psychological signs of torture and ill-treatment and access to other independent experts as necessary. A Monitor should accompany every person returned under the MOU (“returned person”) throughout their journey from the sending State to the receiving State, and should go with them to their home or, if taken to another place, to that place.
It should have contact details for a returned person and their next of kin and should be accessible to any returned person or next of kin who wishes to contact it. It should report to the sending State on any concerns raised about the person’s treatment or if the person disappears. For the first year after the person returns, a Monitor should contact him or her, either by telephone or in person, on a weekly basis.
In respect of detention, the terms of reference provide as follows:
“4. Visits to detainees
(a) When the Monitoring Body becomes aware that a returned person has been taken into detention, a Monitor or Monitors should visit that person promptly.
(b) Thereafter, Monitors should visit all detainees frequently and without notice (at least as frequently as the MOU permits; Monitors should consider requesting more frequent visits where appropriate, particularly in the early stages of detention.
(c) Monitors should conduct interviews with detainees in private, with an interpreter if necessary.
(d) Monitoring visits should be conducted by experts trained to detect physical and psychological signs of torture and ill-treatment. The visiting Monitor or Monitors should ascertain whether the detainee is being provided with adequate accommodation, nourishment, and medical treatment, and is being treated in a humane and proper manner, in accordance with internationally accepted standards.
(e) When interviewing a detainee, a Monitor should both encourage frank discussion and observe the detainee’s condition.
(f) Monitors should arrange for medical examinations to take place promptly at any time if they have any concerns over a detainee’s physical or mental welfare.
(g) The Monitoring Body should obtain as much information as possible about the detainee’s circumstances of detention and treatment, including by inspection of detention facilities, and should arrange to be informed promptly if the detainee is moved from one place of detention to another.”
Paragraph 5 provides that, in order to monitor compliance with the right to fair trial, Monitors should have access to all court hearings, subject to the requirements of national security. Paragraph 6 states that monitors should ensure that they are mindful of any specific assurances made by the receiving State in respect of any individual being returned, and should monitor compliance with these assurances. Paragraph 7, on reporting, provides that the Monitoring Body should provide regular frank reports to the sending State and should contact the sending State immediately if its observations warrant.
C. Relevant decisions of the United Nations Committee against Torture
1. Agiza v. Sweden (communication no. 233/2003, decision of 20 May 2005)
45. The complainant before had been convicted in absentia by an Egyptian court in 1998 of terrorist activity. In 2000 he claimed asylum in Sweden. His claim was rejected and he was deported to Egypt in December 2001 where he alleged he was tortured. It appears from the decision of the Committee that, while the claim was being considered, Swedish Government officials met representatives of the Egyptian Government in Cairo and obtained guarantees from a senior official that the complainant would be treated in accordance with international law on return.
The Committee considered that the Swedish authorities knew, or ought to have known, of consistent and widespread use of torture of detainees in Egypt, particularly those detained for political or security reasons. Sweden was also aware that the complainant fell into this category and of the interest of foreign intelligence services in him. Swedish police officers had also acquiesced in ill-treatment by agents of an unspecified foreign state immediately before the complainant’s expulsion. These factors meant Sweden’s expulsion was in breach of Article 3 of the United Nations Convention against Torture (the prohibition of refoulement of a person to another state where there are substantial grounds for believing he would be in danger of being subjected to torture). In the Committee’s view: “the procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.”
The Committee also found that Sweden was in breach of its procedural obligations under the same Article to provide an effective, independent and impartial review of the expulsion decision since it had been taken by the Swedish Government without recourse to the normal appeals process for asylum decisions. Sweden, by immediately removing the applicant after that decision, had also breached its obligations under Article 22 of the Convention to respect the effective right of individual communication with the Committee.
2. Complaints relating to Article 15 of the Convention against Torture
46. Article 15 of the Convention against Torture requires that each State Party to the Convention shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
In P.E. v. France (complaint no. 193/2001), decision of 21 November 2002, the Committee considered the case of a German national who had been extradited from France to Spain. The complainant alleged the Spanish extradition request had been based on statements by a third person obtained by torture. While rejecting the complaint as unsubstantiated, the Committee considered that the provisions of Article 15 applied to the extradition proceedings in France and that France had the obligation to ascertain the veracity of the allegations made. The “broad scope” of Article 15 and its applicability to extradition proceedings was confirmed by the Committee in G.K. v. Switzerland (communication no. 219/2002), decision of 7 May 2003, which also concerned an extradition to Spain where the basis of the extradition request was a statements by a third party allegedly obtained by torture. Criminal proceedings initiated by the third party against his alleged torturers were discontinued by the Spanish authorities and the complaint was therefore dismissed by the Committee as unsubstantiated; consequently, there had been no violation of Article 15 by Switzerland in extraditing the complainant.
47. Article 15 was relied on by the Cour de Appel de Pau its decision to refuse an extradition request by Spain in Le Ministère Public et Irastorza Dorronsoro, case no. 238/2003, 16 May 2003. It had been accepted by the Spanish authorities that statements by a third party, Ms Sorzabal Diaz, whilst in detention were the only evidence against Mr Irastorza Dorronsoro. The court found there were serious grounds for believing that Ms Sorzabal Diaz had been physically abused during her detention and further inquiries of the Spanish authorities had failed to dispel those concerns. It could not been excluded, therefore, that her statements had been obtained contrary to Article 15 and, as such, the extradition request was refused.
The applicant makes three complaints. First, under Article 3 of the Convention, he complains that he is at real risk of being subjected to torture or ill-treatment if deported to Jordan. He argues that the assurances provided by the Jordanian Government to the United Kingdom cannot be relied on compatibly with that Article when there remains a pattern of human rights violations in Jordan and a culture of impunity for state agents in the security service and prisons who perpetrate such violations. He also argues that it is incompatible with Article 3 to rely upon material which is not disclosed to the applicant (“closed material”) to establish the effectiveness of those assurances.
Second, under Article 5 of the Convention, he complains that if deported he is at real risk of a flagrant denial of his right to liberty as guaranteed by that Article due the possibility under Jordanian law of incommunicado detention for up to 50 days. Under Article 5, he also alleges that he would be denied legal assistance during any such detention.
Third, under Article 6 of the Convention, he argues that he is at real risk of a flagrant denial of justice if retried in Jordan for either of the offences for which he has been convicted in absentia. This, he alleges, will arise from the following factors, either individually or cumulatively: that the State Security Court is a military court, which lacks institutional independence from the executive; that there are substantial grounds for believing that there is a real risk that evidence obtained by ill-treatment contrary to Article 3 of the Convention will be admitted against him; and that, if convicted, there is a real risk that a whole life sentence will be imposed.
QUESTIONS TO THE PARTIES
(i) a lack of legal assistance either during questioning by the Jordanian General Intelligence Directorate, questioning by the United States Government, or questioning by the State prosecutor (Salduz v. Turkey [GC], no. 36391/02, § 54, 27 November 2008);
(ii) retrial by the State Security Court, given its military composition and the allocation of certain categories of offence to it in abstracto (Ergin v. Turkey (no. 6), no. 47533/99, § 47, ECHR 2006 ... (extracts); and/or
(iii) the use of evidence obtained by the treatment of others contrary to Article 3 ?
What significance, if any, to the issues under Article 6 is to be attached to the length of any sentence the applicant would receive if convicted?