Resolution CM/ ResDH ( 2013)198

Othman (Abu Qatada ) against the United Kingdom

Execution of the judgment of the European Court of Human Rights

(Application No. 8139/09, judgment of 17 January 2012, final on 9 May 2012)

(Adopted by the Committee of Ministers on 26 September 2013

at the 1179th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitut io in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having recalled that the case concerned the United Kingdom government ’ s decision to deport the applicant to Jordan on national security grounds which the European Court found would be in violation of Article 6, on account of the real risk of the admission of evidence at the applicant ’ s retrial in Jordan obtained by torture of third persons;

Having examined the action report and the letter of 9 July 2013 provided by the government indicating the measures adopted in order to give effect to the judgment, and noting that no award of just satisfaction was made by the Court in the present case (see documents DH-DD(2013)315 and DH-DD(2013)799);

Having noted, in respect of the individual measures, the authorities ’ indications both that the applicant made clear statements that his return to Jordan was voluntary and that the effect of the Mutual Legal Assistance Treaty is to eliminate the risk that evidence obtained by torture will be used in any criminal proceedings against him there;

Having regretted nevertheless that it was not informed of the developments in the case until after the applicant ’ s deportation had already taken place;

Recalling, in respect of the general measures, that any decision to deport an individual on national security grounds can be reviewed by the domestic courts by an appeal with suspensive effect and having noted with satisfaction that the domestic courts have integrated the European Court ’ s jurisprudence as regards the relevance of Article 6 (as they did in the applicant ’ s case);

Having further noted that the Mutual Legal Assistance Treaty between the United Kingdom and Jordan, which the authorities state binds the Jordanian State Security Court, entered into force on 1 July 2013 and is aimed at eliminating the risk that torture evidence would be used in criminal proceedings against individuals returned from the United Kingdom to Jordan by imposing a burden on the Jordanian prosecutor to prove to a high standard that statements used at trial were provided by free-will and choice and not obtained by torture or ill treatment;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of Judgments of the European Court of Human Rights

Action Report

Othman (Abu Qatada ) v. the United Kingdom

(Application No. 8139/09; judgment final on 9 May 2012)

Information submitted by the United Kingdom Government on 9 November 2012, updated on 4 March 2013

Case Summary

1. Case description:

- The case involved the proposed deportation of Abu Qatada , on national security grounds, to Jordan, his country of origin. Her Majesty ’ s Government relied upon assurances with the Hashemite Kingdom of Jordan that Abu Qatada ’ s removal would be compliant with domestic and international law. Abu Qatada alleged that if deported, he would be at risk of ill treatment contrary to Article 3 of the Convention, and a flagrant denial of justice contrary to Article 6 of the Convention. On Article 6, it is common ground that Abu Qatada would face a retrial having been found guilty in absentia of conspiracy to cause explosions (both in the “reform and challenge trial” and the “millennium conspiracy”). Abu Qatada also raised Articles 5 and Article 3 in conjunction with Article 13. The Court found unanimously that: (1) the application was admissible, (2) deportation would not breach Article 3 when considered in isolation, or in conjunction with Article 13, and (3) deportation would not breach Article 5.

- The Court did find that Abu Qatada ’ s deportation to Jordan would be in violation of Article 6 on account that there was a real risk of the admission at his retrial of evidence obtained by torture of third persons.

Individual Measures

2. Just satisfaction:

- Her Majesty ’ s Government was not required to pay just satisfaction, and has not done so.

3. Individual measures:

- Her Majesty ’ s Government agrees it will not deport Abu Qatada if there is a real risk that he would be subject to a flagrant denial of justice as defined by the Court ’ s findings.

- Her Majesty ’ s Government has subsequently taken measures to remove the Article 6 risk by undertaking detailed discussions with and obtaining further assurances from the Government of the Hashemite Kingdom of Jordan regarding the risk of ‘ tainted ’ evidence being adduced against Abu Qatada .

- Her Majesty ’ s Government has therefore considered and refused Abu Qatada ’ s application to have his Deportation Order revoked.

- The measures we have taken are being tested by the United Kingdom domestic courts. A judgment of the Special Immigration Appeals Commission of 12 November 2012 which reviewed the issue is under appeal to the Court of Appeal, with the possibility of further appeal to the Supreme Court if permission is granted. The domestic courts are required to take into account Strasbourg case law and practice under the terms of the Human Rights Act (as shown by judgment of the Special Immigration Appeals Commission, which takes full account of the Strasbourg judgment). Abu Qatada and his lawyers are participating fully in the litigation process.

- As above, Her Majesty ’ s Government will not deport Abu Qatada if the domestic courts or the European Court of Human Rights find that there remains a real risk that deportation would breach Article 6 ECHR.

- As this issue is now being assessed in new proceedings by reference to the Court ’ s judgment, the Government considers that no further individual measures are necessary to implement the judgment.

General Measures

4. General measures:

- Her Majesty ’ s Government considers no general measures to be necessary as the European Court of Human Rights unanimously upheld the principle of “deportation with assurances” (DWA), which we continue to pursue in order to remove terrorists who pose a threat to our national security. The issues Her Majesty ’ s Government lost on before the European Court of Human Rights related to the very particular issues in play in this case. Further, all DWA cases are run through the SIAC court which is now familiar with the judgment of Strasbourg having considered it at Qatada ’ s recent appeal against the deportation order in place against him. The domestic courts must take into account Strasbourg caselaw and this judgment has been widely published and reported such that no general measures are required. We are also aware, due to our management of the current cases that no other deportees are currently in an analogous position.

5. Publication and Dissemination:

The judgment was widely published and reported. For example, see: -

- http://www.bailii.org/eu/cases/ECHR/2012/56.html

- http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=4f169dc62&skip=0&query=abu%20qatada

6. State of execution of judgment:

- Her Majesty ’ s Government considers that all necessary measures have been taken and the case should be closed

UNITED KINGDOM 9 July 2013

DELEGATION TO THE COUNCIL OF EUROPE

FROM THE PERMANENT REPRESENTATIVE

OTHMAN v. UK

In January 2012 the European Court of Human Rights found that whilst the deportation of Mr Othman to Jordan would not be contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) it would nevertheless constitute a flagrant denial of his Article 6 rights, principally in relation to the risk that evidence alleged to have come from torture would be used against him at his retrial in

Jordan.

After the January 2012 decision the UK Government worked with the Jordanian authorities to address the concerns of the Court about the Jordanian justice system. In April 2012 the Home Secretary took a further decision to deport Mr Othman. This decision was appealed by Mr Othman and in November 2012 the UK ’ s Special Immigration Appeals Commission (SIAC) upheld his appeal. The Commission noted that "the Jordanian judiciary, like their executive counterparts, are determined to ensure that the appellant will receive, and be seen to receive, a fair trial" and that "If the only question which we had to answer was whether or not, in a general sense, the appellant would be subjected to a flagrantly unfair trial in Jordan our unhesitating answer would be that he would not."

However, its overall conclusion was that the further information and assurances the UK Government had obtained did not remove the risk that evidence obtained from torture would be used against Mr Othman and as such his removal continued to be contrary to the ECHR.

The Home Secretary appealed that decision to the Court of Appeal, but it dismissed her appeal in March 2013. At the same time the UK Government was negotiating a treaty with the Jordanian Government to resolve these issues and on 24 March 2013 a Treaty on Mutual Legal Assistance in Criminal Matters was signed between Jordan and the United Kingdom. This Treaty contains provisions aimed at mutual legal assistance generally as well as provisions (in Chapter VIII) which are relevant to Mr Othman ’ s case. These provisions sought to resolve the concerns identified in SIAC ’ s judgment by providing the procedural protections which SIAC held would be necessary - namely the imposition of a burden on the Jordanian prosecution at any retrial of proving to a high standard the statements considered by SIAC from his former co-defendants were not obtained by torture or ill-treatment. Article 27 (4) provides:

"Where, before the date of signature of this Treaty, a Court in the sending State has found that there is a real risk that a statement from a person has been obtained by torture or ill-treatment by the authorities of the receiving State, and might be used in a criminal trial in the receiving State referred to in paragraph 1 of this Article, this statement shall not be submitted by the prosecution nor admitted by the Court in the receiving State, unless the prosecution in the receiving State proves beyond any doubt that the statement has been provided out of free-will and choice and was not obtained by torture or ill-treatment by the authorities of the receiving State, and the Court in the receiving State is so satisfied."

The position in Jordanian law is that the Treaty, once in force, binds the Jordanian State Security Court and forms part of domestic Jordanian law, having primacy over other provisions of domestic law.

After the Treaty was signed and whilst it was subject to United Kingdom and Jordanian parliamentary procedures details of the Treaty were passed to Mr Othman ’ s lawyers. At bail hearings on 10 May 2013 and 20 May 2013, Mr Othman informed SIAC through his Leading Counsel, Edward Fitzgerald QC, that, were the Treaty to come into force, Mr Othman would return voluntarily to Jordan (the transcript of the hearing is enclosed). That position was maintained in a letter from Mr Othman ’ s lawyers of 20 June 2013, which was a response to a letter of 13 June 2013 from the Treasury Solicitor which informed Mr Othman of the Secretary of State ’ s intention to make a fresh decision not to revoke the deportation order against him.

In anticipation of the Treaty coming into force on 27 June the Home Secretary made a further formal decision to deport Mr Othman contingent on the Treaty coming into force and the appropriate notifications being given under Chapter VIII. As the Treaty conclusively resolved the remaining issues in the case using section 94 of the Nationality, Immigration and Asylum Act 2002, the Home Secretary also certified that any appeal Mr Othman might raise would be "clearly unfounded" and so non- suspensive . The Treaty came into force on 1 July following publication in the Jordanian Official Gazette and the relevant notifications were given and passed to Mr Othman ’ s lawyers on 3 July 2013.

Mr Othman ’ s lawyers met officials from the Home Office on 1 July 2013 and the following days saw a number of further exchanges between the two sides, by e-mail and telephone. These exchanges provided a number of opportunities for Mr Othman ’ s (experienced) legal team to challenge the Secretary of State ’ s decision through judicial review or to seek an injunction preventing removal. They did not do this and instead focused on practical matters relating to Mr Othman ’ s removal, and ensuring he had legal representation in Jordan which was obtained.

As above and in light of the Treaty, Mr Othman ’ s clear statements that his return to Jordan was voluntary ("In a statement issued through his lawyer, Abu Qatada said ‘ I ’ m happy to be in my country again. I came back voluntarily" ‘ , http://www.guardian.co.uk/world/2013/jul/07/abu-qatada-human-rights) and his consequent decision not to contest his deportation, the UK Government would be grateful for this case to now be closed.