Strasbourg strikes back? A trio of UK judgments

by Kate Donald

Yesterday, 17th January 2011, the European Court of Human Rights announced three major judgments in cases brought against the UK. All were predicted to have significant implications, for British policy and for the human rights discourse in the UK. As it turned out, the Court found against the UK in one case and for the UK in the other two.

In the case of Othman (Abu Qatada) v United Kingdom, the Court found that ‘radical Islamic preacher’ and Jordanian national Abu Qatada could not be deported to Jordan, where he is wanted on charges of terrorism (in fact he has already been convicted in absentia of involvement in two terrorist conspiracies). The Court found this would violate Article 6, the right to a fair trial. Interestingly, the Court did not find there would be a violation of Article 3 (prohibition of torture) or Article 5 (right to liberty and security). The judgment confounds the UK government’s efforts to deport Qatada, having obtained diplomatic assurances from Jordan that Qatada would not be subjected to torture or ill-treatment on his return.
The judges found that the threat to a fair trial comes from the fact that evidence obtained using torture would likely be used against him, a likelihood that was not protected against in the UK-Jordan agreement. [Abu Qatada was granted asylum in the UK in 1993, on the basis that he had been detained and tortured by the Jordanian authorities in 1988 and 1990-1. However, in 2002 he was detained under the Anti-Terrorism, Crime and Security Act.] To read the judgment, click here.

Although there is predictable outrage about this judgment in various sections of the press, the ruling is not a serious defeat for the UK government in a broader sense. The fact that they were able to satisfy the court that diplomatic assurances were adequate protection against torture and ill-treatment in the case of deportation leaves the door open for the continuing deportation of other foreign nationals to jurisdictions where torture is routinely practiced. [The government has similar diplomatic assurances in place with, inter alia, Algeria and Libya.] Amnesty International and Human Rights Watch, among other human rights organisations, have raised concern about diplomatic assurances generally, and today about this aspect of the ruling. Eric Metcalfe in an excellent article in The Guardian states that the judgment 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.”

In fact,in another ruling with significant implications, Harkins and Edwards v. United Kingdom, diplomatic assurances also played a key role. The two men lost their appeal against extradition to the United States, despite their claim that they could face the death penalty. The judges decided unanimously that "the diplomatic assurances, provided by the US to the British government - that the death penalty would not be sought in respect of Mr Harkins or Mr Edwards - were clear and sufficient”.

The third case, Vinter and others v. United Kingdom concerned the life sentences handed down to 3 convicted multiple murderers. On the heels of Strasbourg’s 2004 judgment in Hirst v. U.K. (upheld on appeal) that restriction of the voting rights of prisoners violated Article 3, a finding against the UK in this case threatened to give even bigger momentum to the conservative politicians and media organs* massing in revolt against the European Court. However, the Court found that the three men’s imprisonment for life is not inhumane or degrading treatment under Article 3, nor were their sentences disproportionate. To read the judgment, click here.

*Addendum: one of the favourite phrases of journalists and politicians is that the European Court is ‘unaccountable’, ‘undemocratic’ with ‘unelected judges’ ‘usurping’ British powers. In fact, an elected British government signed the European Convention, and indeed was one of the driving forces behind it. An elected British government chose to allow individual petition to the European Court. An elected British parliament passed the Human Rights Act, which in fact allows a number of safeguards (far more than in other jurisdictions) for ensuring that Strasbourg judgments cannot automatically override legislation. The ‘unelected’ judges are, in fact, elected by the Parliamentary Assembly of the Council of Europe, on which the UK is represented by 18 British parliamentarians (most of them elected; there are some House of Lords members on there too).

About the Author:

 Kate Donald is Research Fellow at the International Council on Human Rights Policy.

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