Rezoluția CM/ResDH(2013) 1998 Othman (Abu Qatada) împotriva Regatului Unit executarea hotărârii Curții Europene a Drepturilor Omului (Recherche n 8139/09, Hotărârea din 17 ianuarie 2012, definitivă la 9 mai 2012) (adoptată de Comitetul de Miniștri la data de ... 2013, în cadrul celei de-a 1179-a ședințe a delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârea definitivă care a fost transmisă de Curte Comitetului și încălcarea constatată; reamintind obligația statului pârât în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum ; și măsuri generale de prevenire a unor încălcări similare ; Am invitat guvernul de la statul pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligațiilor Reamintind că cauza se referă la decizia guvernului Regatului Unit de a trimite reclamantul înapoi în Iordania din motive de securitate națională, decizie care, potrivit Curții Europene, ar contraveni articolului 6, având în vedere riscul real de a fi admis la noul proces al reclamantului din Iordania de a dovedi că torturarea unor terțe persoane După examinarea bilanțului de acțiune și a scrisorii din data de 9 iulie 2013 furnizate de guvern, indicând măsurile adoptate în vederea executării hotărârii judecătorești și notând că: a fost acordată o satisfacție echitabilă în prezenta cauză de către Curte (a se vedea documentele DH-DD(2013) 315 [1] DH-DD(2013) 799 [2] După ce a remarcat, în ceea ce privește măsurile individuale, indicațiile autorităților potrivit cărora reclamantul a făcut declarații clare conform cărora întoarcerea sa în Iordania a fost voluntară, precum și tratatul de asistență judiciară reciprocă care elimină riscul de utilizare a probelor obținute prin tortură în cadrul oricărei proceduri penale împotriva sa în Iordania Cu toate acestea, regretând că nu au fost informate cu privire la evoluțiile din cauza că după ce reclamantul a plecat la Iordania Reamintind, în ceea ce privește măsurile generale, că orice decizie de îndepărtare a unei persoane din motive de securitate națională poate fi controlată de instanțele naționale prin intermediul unei căi de atac cu efect suspensiv și care a observat cu satisfacție că instanțele naționale au integrat jurisprudența Curții Europene privind art. 6 (și anume, în cazul reclamantului) În plus, după ce a observat că Tratatul de asistență judiciară reciprocă dintre Regatul Unit și Iordania, ale cărui autorități indică faptul că o instanță de securitate a statului iordanian, a intrat în vigoare la 1 iulie 2013 și că este destinat să elimine riscul de utilizare a probelor obținute prin tortură în cadrul procedurilor penale împotriva persoanelor retrimise din Regatul Unit în Iordania, prin impunerea sarcinii procurorului iordanian de a dovedi, cu un grad ridicat de exigență, că declarațiile utilizate în proces au fost făcute în mod voluntar și că nu au fost obținute prin tortură sau prin tratamente abuzive. Având în vedere faptul că au fost adoptate toate măsurile impuse de art. 46 alineatul (1), DECURSĂ că a îndeplinit atribuțiile care îi revin în temeiul articolului 46 alineatul (2) din convenție în această cauză și DECIDE d (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 Case description: The case involved the propund deportation of Abu Qatada, on national security grounds, to Jordan, his country of origin. Her Maiesty.s Government linked upon asigurari with the Hashemite Kingdom of Jordan that Abu Qatada art. 6, it is common ground that Abu Qatada would fae a retrial having been found guilty in absentia of conspiracy to cauza explozii (both in the The Court found unanimously that: (1) the application was admisibil, (2) deportation would not breach Article 3 when considered in izolation, or in conjunction with Article 13, and (3) deportation would not breach Article 5. The Court did find that Abu Qatãvãs deportation to Jordan would be in violation of Article 6 on account that there was a real risk of the admision at his retrial of evidence obtained by torture of third persons. Individual Measures Just satisfaction: Her méssty as Government was not required to pay just satisfaction, and has not done so. Individual measures: "Her Majesty mais 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 asfinted by the Court Her Maiesty mais Government has subsequently taken measures to remove the Article 6 risk by undertaking detailed discutions with and obtaining further asigurations from the Government of the Hashemite Kingdom of Jordan regarding the risk of tainted The Measures we have taken are being tested by the United Kingdom domestic scurts. A judgment of the Special Imigration Appeals Commission of 12 November 2012 which reviewed the is under appeal to the Court of Appeal, with the possibility of further appeal to the Supreme Court if permision is granted. Domestic scurts 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 Imigration Appeals Commission, which takes foll account of the Strasbourg judgment). Abu Qatada and his lawyers are participating fully in the litigation procesion. As above, Her Majesty as Government will not deport Abu Qatada if the domestic scurts or the European Court of Human Rights find that there remains a real risk that deportation would breach Article 6 EHR. As this is this is now being assessed in new procesedings by reference to the Court as judgment, the Government considers that no further individual measures are nevoiesary to implement the judgment. General Measures 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 maimusion with food (DWA), which we continue to pure in order to remove terorts who a threat to our national security. The issues Her Majesty. Further, all DWA cases are run through the SIAC scurt which is now familiar with the judgment of Strasbourg having considered it at Qatada agueal against the deportation order in place against him. The domestic Courts trebuie să take into account Strasbourg cazelaw and this judgment has been widely publicityshed and reported such that no general measures are required. We are also aware, due to our management of the current ses that no other deportes are currently in an analogous pozition. Publication and dissemination: The judgment was widely publicisshed and reported. for example, see: - http://www.leandii.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 FROM THE PERMANENT REPREZENTATIVE 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 totuși constituted 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 privices of the Court about the Jordanian Justice system. In aprilie 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 The Commission noted that "The Jordanian judiciary, like their executaive counterparts, are determined to ensure that the apelant will receive, and be seen to receive, a fair trial" and that "If the only question which had to answer was whether or not, in a general sense, the apelant would be subjected to a flagrantly unfair trial in Jordan orr unhesitating answer would be that he wold not." However, its overall conclusion as that the further information and asiguration the UK Government had obtained did not remove the risk that evidence obtained from torture would be used against Mr Othman and as such removal continued to be contrary to the EHR. The Home Secretary appeed 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 Support in Criminal Matters was semnd between Jordan and the United Kingdom. This Treaty containts agreed at mutual legal asistence Generally aswell as as procure (in Chapter VIII) which are aparition to Mr Othmans case. Aceste provizioane sought to resolve the efficient identified in SIAC.s judgment by providing the procesdural protections which SIAC held would be necessary - namely the impozit of a burden on the Jordanian prosecution at any retrial of provoving to a high standard the states considered by SIAC from his formation co-deflantes were not obtained by tortura or il-treatment.art. 27 (4) provides: "Where, before the date of signation of this Treaty, a Court in the sending State has found that there is a real risk that a state state state state state state referind to in paragraph 1 of this Article, this statement shall not be submitted by the prosecution nor admitted by the Court in receiving State, unless the prosecution in the receiving State proves beyond any doubt that the stating has been provided out of free-will and choice and was not obtained by torturation or ll-treatment by the thorities of receiving State, the Court in receing State is satised State." Poziția în Jordanian law este aceea că Treaty, unce 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 semned and whilst it subject to United Kingdom and Jordanian parliamentary procedures details of the Treaty were pased to Mr Othmans lawyers. A închiriat hearings pe 10 May 2013 și 20 May 2013, dl Othman informează SIAC through his Leading Counsel, Edward Fitzgerald QC, that, were the Treaty to come into force, domnul Othman would return voluntarily to Jordan (The transcriere of the hearing is țarsed). Această poziție a fost pusă la dispoziția domnului Othmanuis 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 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 apte notices being given under Chapter VIII. As the Treaty finally resolved the remaining issues in the case using section 94 of the Nationality, Imigration and Asylum Act 2002, the Home Secretary also certificed 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 subsets were given and pased to Mr Othman Dl Othmanuis lawyers pune 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 oportunities for Mr Othman They did not do this and instead focused on Practical matters relating to Mr Othmanuis removal, and ensuring he had legal representation in Jordan which was obtained. As above and in light of the Treaty, Mr. Othmanuis clear statement that his return to Jordan was voluntary ("In a statement issued through his lawyer, Abu Qatada said http://www.guardian.co.uk/world/2013/jul/07/abu-qatada-uman-rights ) and his consequent decision not to contemplation his deportation, the UK Government would be gratful for this case to now be clondd. [1] Numai engleză [2]
Résolution CM/ResDH(2013)198
Othman (Abu Qatada) contre le Royaume-Uni
Exécution de l’arrêt de la Cour européenne des droits de l’homme
(Requête n
o
8139/09, arrêt du 17 janvier 2012, définitif le 9 mai 2012)
(adoptée par le Comité des Ministres le ... 2013,
lors de la 1179e réunion des Délégués des Ministres)
Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «
la Convention
» et «
la Cour
»),
Vu l’arrêt définitif qui a été transmis par la Cour au Comité et la violation constatée ;
Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe
1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire
:
-
de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par
restitutio in integrum
; et
-
de mesures générales permettant de prévenir des violations semblables ;
Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée
;
Ayant rappelé que l’affaire concerne la décision du gouvernement du Royaume-Uni de renvoyer le requérant vers la Jordanie pour des raisons de sécurité nationale, décision qui selon la Cour européenne contreviendrait à l’article 6, en raison du risque réel que soient admises au nouveau procès du requérant en Jordanie des preuves obtenues par la torture de tierces personnes
;
Ayant examiné le bilan d’action et le courrier daté du 9 juillet 2013 fournis par le gouvernement, indiquant les mesures adoptées afin d’exécuter l’arrêt et notant qu’aucune satisfaction équitable n’a été octroyée par la Cour dans la présente affaire (voir documents
[1]
et
[2]
)
;
Ayant noté, en ce qui concerne les mesures individuelles, les indications des autorités selon lesquelles le requérant a fait des déclarations claires aux termes desquelles son retour en Jordanie était volontaire ainsi que le traité d’assistance judiciaire mutuelle éliminant le risque d’utilisation de preuves obtenues par la torture dans toute procédure pénale à son encontre en Jordanie
;
Ayant toutefois regretté de n’avoir été informés des développements dans l’affaire qu’après l’éloignement du requérant vers la Jordanie
;
Rappelant, en ce qui concerne les mesures générales, que toute décision d’éloigner une personne pour des motifs de sécurité nationale peut être contrôlée par les tribunaux nationaux par le biais d’un recours ayant un effet suspensif, et ayant noté avec satisfaction que les tribunaux nationaux ont intégré la jurisprudence de la Cour européenne relative à l’article 6 (ainsi qu’ils l’ont fait dans le cas du requérant)
;
Ayant noté, en outre, que le traité d’assistance judiciaire mutuelle entre le Royaume-Uni et la Jordanie, dont les autorités indiquent qu’il s’impose à la Cour de sûreté de l’Etat jordanien, est entré en vigueur le 1er juillet 2013 et qu’il est destiné à éliminer le risque d’utilisation de preuves obtenues par la torture dans des procédures pénales à l’encontre de personnes renvoyées du Royaume-Uni vers la Jordanie, en imposant au procureur jordanien la charge de prouver, avec un degré d’exigence élevé, que les déclarations utilisées dans le procès ont été faites volontairement et qu’elles n’ont pas été obtenues par la torture ou par des mauvais traitements
;
S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,
DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et
DECIDE d’en clore l’examen.
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
9 July 2013
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.
[1]
Anglais uniquement.
[2]
Anglais uniquement.