The European Court of Human Rights has ruled in Othman (Abu Qatada) v The United Kingdom against the deportation of Islamist militant Abu Qatada to Jordan, as he may face a trial grounded on "torture-tainted evidence" (evidence gained by torturing third parties).
The key issue in contention in this case, as summarised by a piece on UK Human Rights Blog, is under what circumstances may a state that is bound by the European Convention on Human Rights (ECHR) be required not to deport an individual to a country that is not bound by the ECHR where the individual concerned will face a trial that would fall short of the standards set by Article 6 (the right to a fair trial)?
The decision states that there would be a real risk of "torture-tainted evidence" which would result in a "flagrant denial of justice". The ECtHR said that the "central issue in the present case is the real risk that evidence obtained by torture of third persons will be admitted at the applicant's retrial [in Jordan]". The ECtHr's decision may result in Abu Qatada's immediate application for bail and release from prison.
The court held that without any assurance by Jordan that the torture evidence would not be used against the applicant, his deportation to be retried in Jordan would result in a "flagrant denial of justice" that would violate Article 6 of the ECHR. This is the first time that Article 6 protections have been extended to cover proceedings where testimony is derived from torturing witnesses.
Shami Chakrabarti, Director of UK human rights organisation Liberty said "The court found that torture and evidence obtained that way is widespread in that country. So it is clear that if Abu Qatada is to be tried for terrorism, this should happen in a British court without further delay."
Home Secretary, Theresa May said: "I am disappointed that the court has made this ruling. This is not the end of the road, and we will now consider all the legal options available to us. In the meantime, Qatada will remain in the UK. It is important to note that this ruling does not prevent us seeking to deport other foreign nationals."
The decision has been met with a mixed reaction in the media. Eric Metcalfe commented in the Guardian that, "...... the court ruled that Abu Qatada cannot be deported because his trial in Jordan would involve the use of evidence obtained by torture. In doing so, it has managed the remarkable feat of producing a ruling that both weakens the international prohibition against torture while at the same time is certain to provoke fresh outrage from government ministers and tabloids." Professor Adam Tomkins, Chair of Public Law at the University of Glasgow has commented that this is the fifth recent case where the Strasbourg court has overturned the House of Lords in a national security case.
Click here to read a further piece on UK Human Rights blog about the position of this case in the context of the UK's current human rights debate. This was an issue discussed by Liberty Director Shami Chakrabarti at PILA & The PILS Project's November 2011 conference .