Assuring Deportation of Terrorist Suspects
| DOI | 10.1350/jcla.2012.76.3.769 |
| Author | Ben Middleton |
| Date | 01 June 2012 |
| Published date | 01 June 2012 |
| Subject Matter | European Court of Human Rights |
European Court of Human Rights
Assuring Deportation of Terrorist Suspects
Othman (Abu Qatada) v United Kingdom (App. No. 8139/09, 17 January
2012)
Keywords
Assurances; Memorandum of understanding; Terrorism; Pro-
hibition of torture; Right to a fair trial
Qatada was a Jordanian national who had come to the UK in 1993,
before being recognised as a refugee and granted leave to remain in the
UK until 1998. He was tried in absentia in Jordan in 1999 and 2000 as
part of a conspiracy for various offences and received sentences of
life and 15 years’ imprisonment with hard labour. At the trials, there
was some evidence, not fully investigated and deemed unproven, that
Qatada’s co-defendants had been subjected to ill-treatment and
torture.
Qatada’s application for indefinite leave to remain in the UK was
pending in 2001, at which point he was arrested and detained as a
foreign terrorist suspect under Part IV of the Anti-Terrorism, Crime and
Security Act 2001. Following the House of Lords’ decision in the Bel-
marsh case (A v Secretary of State for the Home Department [2004] UKHL 56,
[2005] 2 AC 68), which ultimately led to the repeal of the detention
provisions, Qatada was placed under a control order. As is common
practice with the deportation of individuals to countries that may have
a dubious human rights record, assurances were sought by the Foreign
and Commonwealth Office (FCO) that if returned, Qatada would not be
subjected to torture or ill-treatment contrary to Article 3 of the Euro-
pean Convention on Human Rights. The FCO signed a Memorandum of
Understanding (MOU) with the Kingdom of Jordan in 2005, which
purported to provide a range of guarantees with respect to treatment
upon return, detention, and the provision of a fair trial. Upon the
conclusion of the MOU, the Home Secretary gave notice of intention to
deport Qatada to Jordan, and he was correspondingly detained for that
purpose.
Qatada challenged the legality of his removal in the Special Immigra-
tion Appeals Commission (SIAC), the Court of Appeal, and ultimately
the House of Lords. The House of Lords held that the MOU was sufficient
to mitigate the risks of ill-treatment and that removal would not violate
Article 3 or other provisions of the European Convention on Human
Rights (RB (Algeria) v Secretary of State for the Home Department [2009]
UKHL 10, [2010] 2 AC 110). Qatada duly petitioned the European Court
of Human Rights, alleging that his removal would violate the prohibi-
tion of torture under Article 3 of the European Convention on Human
Rights (together with the right to an effective remedy under Article 13),
the right to liberty and security under Article 5, and the right to a fair
trial pursuant to Article 6.
The Journal of Criminal Law (2012) 76 JCL 213–219
213
doi:10.1350/jcla.2012.76.3.769
The Journal of Criminal Law
HELD, THERE WAS NO VIOLATION OF ARTICLES 3, 5 OR 13, but deciding
there would be a violation of Article 6 if Qatada were deported to
Jordan. With regard to Article 3, the European Court of Human Rights
held that the correct approach to take would be consistent with its
previous decisions: Strasbourg would ‘consider both the general human
rights situation in that country and the particular characteristics of the
applicant’ (at para. 187). Assurances would constitute a relevant factor
for the court to consider, but ‘are not in themselves sufficient to ensure
adequate protection of ill-treatment . . . [t]he weight to be given to
assurances from the receiving State depends, in each case, on the
circumstances prevailing at the material time’ (ibid.). Drawing on exist-
ing case law, the court expounded a variety of additional factors (at para.
189) relevant to an assessment of the quality of assurances. The court
held that ‘the United Kingdom and Jordanian Governments have made
genuine efforts to obtain and provide transparent...
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