The court ruled that key diplomatic assurances received meant there would be
no violation of Article Three which bans the use of torture or inhuman or
degrading treatment.
It also said there would be no violation of Article Five, the right to liberty
and security and no violation of Article 13, the right to an effective
remedy.
The judgment is not final. There is a three-month period in which the
government may request that the case be referred to the Grand Chamber of the
Court for a final judgment, although the request may be refused.
Theresa May, the Home Secretary, 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 detention in the UK. It is
important to note that this ruling does not prevent us seeking to deport
other foreign nationals.”
The European Court agreed with the English Court of Appeal but overturned a
decision in the House of Lords.
It said that the use of evidence obtained by torture during a criminal trial
would amount to a “flagrant denial of justice.”
“Allowing a criminal court to rely on torture evidence would legitimise the
torture of witnesses and suspects” before a trial, it added.
“Moreover, torture evidence was unreliable, because a person being tortured
would say anything to make it stop.”
The court found that torture was widespread in Jordan, as was the use of
torture evidence by the Jordanian courts.
It also found that the evidence of his involvement in the two terrorist
conspiracies with which he is charged, had been obtained by torturing one of
his co-defendants.
When those two co-defendants stood trial, the Jordanian courts had not taken
any action in relation to their complaints of torture.
The Court said there was a high probability that the incriminating evidence
would be admitted at Qatada’s retrial and that it would be of “considerable,
perhaps decisive, importance.”
In the absence of any assurance by Jordan that the torture evidence would not
be used against Qatada, the court decided that his deportation to Jordan to
be retried would give rise to a flagrant denial of justice in violation of
Article Six.
On 18 February 2009 the House of Lords upheld findings by the Special
Immigration Appeals Commission (SIAC) the diplomatic assurances would
protect Qatada from being tortured.
They also found that the risk that evidence obtained by torture would be used
in the criminal proceedings in Jordan would not amount to a flagrant denial
of justice.
Shami Chakrabarti, director of the campaign group Liberty, called for Qatada
to be put on trial in Britain.
“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,”
she said.
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