EHRM, 17-01-2012, nr. 8139/09

In April 1999, the applicant was convicted in absentia in Jordan of conspiracy to cause explosions, in a trial known as the ‘reform and challenge’ case. He was the twelfth of thirteen defendants.

The case involved an allegation of a conspiracy to carry out bombings in Jordan, which resulted in successful attacks on the American School and the Jerusalem Hotel in Amman in 1998. There were further convictions for offences of membership of a terrorist group, but these matters were the subject of a general amnesty. The applicant was sentenced to life imprisonment with hard labour at the conclusion of the trial.

During the trial, one witness, Mohamed Al-Jeramaine, confessed that he and not the defendants had been involved in the bombings. The State Security Court hearing the case took the view that his confession was false, and demonstrably so, because of discrepancies between what he said about the nature of the explosives, for example, and other technical evidence. Mr Al-Jeramaine was later executed for homicides for which he had been convicted in another trial.

The applicant maintains that the evidence against him was predominantly based upon an incriminating statement from a co-defendant, Abdul Nasser Al-Hamasher (also known as Al-Khamayseh). In his confession to the Public (or State) Prosecutor, Mr Al-Hamasher alleged that the applicant had provided prior encouragement for the attacks. He was also said to have congratulated the group after the attacks.

Mr Al Hamasher, along with several other defendants, had complained during the proceedings before the State Security Court that they had been tortured by the Jordanian General Intelligence Directorate (‘the GID’), which shares responsibility for maintaining internal security and monitoring security threats in Jordan with the Public Security Directorate and the military. At the end of the period of interrogation during which they claimed to have been tortured, the Public Prosecutor took a statement from each defendant.

At the trial there was evidence from lawyers and medical examiners and relatives of the defendants that there were visible signs of torture on the defendants. However, the State Security Court concluded that the defendants could not prove torture.

There were a number of appeals to the Court of Cassation and remittals back to the State Security Court, although, as the applicant had been convicted in absentia, no appeals were taken on his behalf. In the course of those appeals, the convictions were upheld on the basis that the relevant statements had been made to the Public Prosecutor. The confessions in those statements thus constituted sufficient evidence for conviction if the court accepted them and if the Public Prosecutor was satisfied with the confessions. The Court of Cassation rejected the claim that the Public Prosecutor had to prove that the defendants had confessed to him of their own accord: the Public Prosecutor's obligation to prove that a confession was obtained willingly only arose where the confession had not been obtained by him. The confessions in question were authentic and there was no evidence that they had been made under financial or moral coercion.

The Court of Cassation then considered the impact of the allegations that the confessions to the State Prosecutor had resulted from coercion of the defendants and their families while they were in GID detention. Such conduct during an investigation was against Jordanian law and rendered the perpetrators liable to punishment. However, even assuming that the defendants' allegations were true, that would not nullify the confessions made to the Public Prosecutor unless it were proved that those confessions were the consequence of illegal coercion to force the defendants to confess to things which they had not done. The defendants had not shown that was the case.

As a result of the applicant's conviction in this trial, the Jordanian authorities requested the applicant's extradition from the United Kingdom. In early 2000, the request was withdrawn by Jordan.

In the autumn of 2000 the applicant was again tried in absentia in Jordan, this time in a case known as the ‘millennium conspiracy’, which concerned a conspiracy to cause explosions at western and Israeli targets in Jordan to coincide with the millennium celebrations. The conspiracy was uncovered before the attacks could be carried out. The applicant was alleged to have provided money for a computer and encouragement through his writings, which had been found at the house of a co-defendant, Mr Abu Hawsher. The applicant maintains that the main evidence against him was the testimony of Abu Hawsher.

Most of the defendants were convicted on most charges; some were fully or partly acquitted. The applicant was convicted and sentenced to 15 years' imprisonment with hard labour. Other defendants, including Abu Hawsher, were sentenced to death. On appeal certain of the defendants, including, it appears, Abu Hawsher, claimed to have been tortured during 50 days of interrogation when they were denied access to lawyers. The Court of Cassation rejected this ground of appeal, holding that the minutes of interrogation showed that each defendant had been told of his right to remain silent about the charges unless their lawyer was present. The applicant also states that the Court of Cassation found that the alleged ill-treatment in GID custody was irrelevant because the State Security Court did not rely on the defendants' confessions to the GID but their confessions to the Public Prosecutor. Abu Hawsher remains under sentence of death.

The findings of the United Kingdom Special Immigration Appeals Commission (SIAC) in respect of the evidence presented at each trial are set out at paragraph 45 below. The further evidence which has become available since SIAC's findings, and which has been submitted to this Court, is summarised as paragraphs 94–105 below.

The applicant appealed to the Court of Appeal, which gave judgment on 9 April 2008, unanimously allowing the appeal in respect of Article 6 and the risk of the use of evidence obtained contrary to Article 3 and dismissing it on all other grounds ([2008] EWCA Civ 290).

For the applicant's complaints under Article 3 as to the use of closed evidence by SIAC and the reliance on the assurances in the MOU, the Court of Appeal considered it was bound by its previous ruling on these questions in MT (Algeria), RB (Algeria), U (Algeria) v. the Secretary of State for the Home Department [2007] EWCA Civ 808, which had found that:

The Court of Appeal also rejected the applicant's appeals based on Article 5, finding that SIAC was entitled to find as it did.

For Article 6, the Court of Appeal rejected the applicant's argument that there was a real risk of a ‘flagrant denial of justice’ in his retrial in Jordan by reason of a lack of independence and or impartiality of the State Security Court: SIAC had been entitled to find as it did on this point and this conclusion was not altered by the later decision of this Court in Al-Moayad v. Germany (dec.), no. 35865/03, 20 February 2007.

However, the Court of Appeal accepted the applicant's argument that there was a real risk that he would suffer a ‘flagrant denial of justice’ by reason of the risk that statements obtained through treatment contrary to Article 3 would be admitted as evidence against him in his retrial. The Court of Appeal observed:

The Court of Appeal noted that SIAC had reached its conclusion that there would not be a complete denial of justice in relation to the use of evidence obtained by torture by relying on the process, admittedly not wholly satisfactory, before the State Security Court and the Court of Cassation. For the Court of Appeal that conclusion sat very ill with SIAC's own findings about the State Security Court process, in particular SIAC's own concern as to the difficulties in proving that evidence had been obtained by torture. In the opinion of the Court of Appeal, SIAC's concern was ‘amply justified by the litany of lack of the basic protections against prior ill-treatment’ in Jordan. It also criticised SIAC's ‘disturbing failure’ to give proper weight to the findings as to the defects in the State Security Court. The Court of Appeal concluded:

The Secretary of State appealed to the House of Lords in relation to the Court of Appeal's conclusion on Article 6. The applicant cross-appealed in relation to his other Convention complaints. The appeal was heard with the appeals of two of the appellants in MT (Algeria), RB and U (see paragraph 48 above). In the conjoined appeals the House of Lords was therefore able to consider the use of closed material before SIAC, the reliance on the assurances contained in the MOU and the applicant's Articles 5 and 6 complaints. The House of Lords gave judgment on 18 February 2009 unanimously allowing the Government's appeal and dismissing the applicant's cross-appeal ([2009] UKHL 10).

In the context of proceedings before this Court, the Government produced two statements from Mr Anthony Layden, a former diplomat and currently United Kingdom Special Representative for Deportation with Assurances.

The first statement, dated 24 September 2009, outlined the closeness of ties between the United Kingdom and Jordan, the United Kingdom's support for various initiatives to enhance human rights in Jordan, as well as various reports (summarised at paragraphs 106–124 below), which showed Jordan's improving human rights record.

The first statement also explained that, after the signature of the MOU, the Governments together assessed which organisation should take on the independent monitoring. The Jordanian Government had proposed the National Centre for Human Rights (NCHR) and, when that body declined, the Jordanian Government suggested Adaleh, which was appointed. The monitoring agreement was signed after representatives from Adaleh met the United Kingdom Foreign Office Minister for the Middle East and North Africa. There was a subsequent meeting between the Secretary of State for the Home Department and the President of Adaleh's Board of Trustees, Mr Arslan MP, and its founder and President, Mr Rababa. Mr Arslan and Mr Rababa made clear that, despite criticism of their decision to act as monitoring body, they had felt it was important for the protection of human rights. They had not been forced into the role or accepted it for financial benefit.

The first statement also outlined Adaleh's training and human rights awareness activities since it was founded in 2003. It had received funding from a large number of donor agencies but none from the Jordanian Government. It had spoken out against the Government and had prepared a study on combating torture in Jordan, which candidly criticised the Government and the GID. After boycotting their workshops for eighteen months, the GID had been participating in a series of workshops which had started in July 2009. In 2007, Adaleh had participated in four Human Rights Watch visits to the GID's Amman detention facility. Mr Rababa had also responded in detail to Human Right Watch's criticism of its ability to monitor the MOU (see paragraphs 91 and 146 below).

Mr Layden also stated that the United Kingdom Government had provided grants and funding to Adaleh worth GBP 774,898, which had been directed towards the human rights training for officials and to established a group of experts. As of September 2009, the centre had ten full-time members of staff and twenty part-time medical and legal experts. The centre had expanded to include the National Team to Combat Torture (NTCT), which would act as Monitoring Body. The team had twenty-six members and three Adaleh Centre staff.

Mr Layden's second statement, dated 26 May 2010, reiterated that ties between Jordan and the United Kingdom remained close after the change of Government in the United Kingdom. The statement also provided an overview of recent reforms in Jordan, including changes to the criminal law to introduce more severe penalties for serious crimes such as torture and measures to increase press freedom. The statement also summarised Jordan's submissions to the United Nations Committee Against Torture in the course of the Committee' consideration of Jordan's second periodic report (see paragraph 107 below).

In the second statement, Mr Layden rejected any suggestion that there would be no incentive to reveal breaches of the MOU; failure to abide by its terms would be likely to do serious damage to diplomatic relations; action proportionate to any breach would certainly be taken by the United Kingdom Government. For the Adaleh Centre, he stated that there was nothing unusual in the fact that it had not carried out any monitoring in Jordan thus far; it operated on a project basis by developing proposals, seeking funding and implementing initiatives. Its NTCT had already visited Qafqafa prison on 9 May 2010. The Centre was not financially motivated; it had lost money by agreeing to act as the monitoring body. Nor was it a for-profit organisation; it was required to return any surplus for projects to donors. Nothing turned on its change to a limited liability company.

Mr Layden also indicated that clarification been sought from the Jordanian Government as to the apparent discrepancy between the English and Arabic versions of the MOU (the Arabic version stating that there would be the right to monitoring for three years after return; the English version stating that, if a returnee was detained within three years of return, he would have the right to monitoring). By the recent exchange of two Note Verbale between the United Kingdom Embassy in Jordan and the Jordanian Government (appended to the statement), the parties had indicated their understanding that:

The applicant submitted a statement from Mr Christophe Wilcke, of Human Rights Watch, which had originally been prepared for the VV case (see paragraph 75 above). Mr Wilcke had conducted visits to various detention facilities in Jordan, which formed the basis for Human Rights Watch's subsequent report of 8 October 2008 (see paragraph 117 below). Mr Wilcke stated that he was accompanied on one visit by Mr Rababa of the Adaleh Centre. According to Mr Wilcke when they discussed the present applicant's case, Mr Rababa appeared to be hearing details of the United Kingdom deportation proceedings for the first time. In his statement, Mr Wilcke characterised Adaleh as very small and noted that it had not carried out any independent prison visits and had not tried to do so.

Mr Wilcke therefore doubted that the assurances would provide an effective safeguard against ill-treatment of the applicant.

In a statement of 7 February 2010, prepared specifically for the proceedings before this Court Ms Refahi, the Arabic-speaking barrister who had given evidence before SIAC as to the previous trials in Jordan, set out the discussions she had had with Jordanian lawyers and NGO officers about Adaleh. They told her that Mr Rababa had strong family links to the Jordanian security services. The centre's change to a for-profit company would have also required the approval of the Ministry of Interior and GID as would Mr Rababa's nomination to the Board of Trustees of the NCHR. None of those interviewed had any knowledge of the centre before it became the Monitoring Body, it had no practical experience of monitoring and would be unable to prevent ill-treatment. The centre was also said to have behaved erratically in choosing experts for its anti-torture programmes; it had preferred lawyers over physicians and had not chosen individuals with monitoring experience.

The Government provided a report of 6 September 2009, which had been prepared by two Jordanian lawyers, Mr Al-Khalila and Mr Najdawi, the former Honorary Legal Adviser to the United Kingdom Ambassador to Jordan since 1975.

The report outlined the structure of the Jordanian legal system and the various and wide powers of Public Prosecutors whom it characterised as judges with an inquisitorial role. It also outlined the functions of the GID and stated that cooperation between it and the State Security Court was very close. The Public Prosecutor before that court was a military officer whose office was located within GID premises. The report also noted that interrogations by GID officers had the goal of obtaining ‘confessions’ from suspects appearing before the State Security Court (quotation marks in the original).

The report stated that the rights of the accused had been enhanced by amendments made in 2001 to the Criminal Code, which it considered to be a ‘vital point’ in its conclusion that the applicant would receive a fair trial. The amendments also meant there could be no flagrant denial of the applicant's right to liberty because, among other reforms, the maximum period before which a detainee had to be brought before a court or public prosecutor had been reduced to twenty-four hours (Article 100(b) of the Code of Criminal Procedure (CCP). However, the report also noted that it was not possible to determine whether the Public Prosecutor would charge the applicant with new offences, which had been introduced by the Prevention of Terrorism Act 2006 and which would allow for the Public Prosecutor to detain him for fifteen days (renewable for up to two months) for the purposes of investigation.

The report also sought to comment on a number of SIAC's findings in respect of Jordanian law. For instance, SIAC had found that access to a lawyer being neither obligatory nor prohibited and that no lawyers were present during GID interrogations. However, there was an obligation for legal representation before a Public Prosecutor, which could be waived by reasoned decision, for example when there was a need for rapid action to prevent evidence being lost (Article 63(2) of the CCP). The presence of a lawyer was unusual in all questioning by Public Prosecutors. By the same token, although SIAC had made reference to the possibility of incommunicado detention, Article 66(2) of the CCP provided that, any time in which contact with a suspect was restricted, this did not apply to contact with his lawyer. SIAC had also found that, in any retrial, the case file from the first trial would be admitted as evidence and that witnesses would not be recalled for cross-examination; this was incorrect as Article 254 of the CCP only allowed a previous case-file to be used as background, the court could only consider evidence which was led at the trial and the defendant would be able to cross-examine witnesses.

The report also commented on the State Security Court, which it said was composed of legal qualified military officers, who did not pursue military careers and were not serving officers. The law on the independence of the judiciary did not apply but nor did they enjoy judicial immunity from prosecution or civil proceedings. Sessions of the court were frequently closed to the public but the defendant would be represented.

The report recognized that allegations of torture were difficult to verify because police and security officials frequently denied detainees timely access to lawyers. However, torture, though occasionally used by the police, was not institutionalized, and it remained an ‘individual action’; if detected, officers were subject to criminal sanctions. A measure of protection was provided to the accused in criminal proceedings by Article 63(3) of the CCP, which required an accused's statement to be signed and fingerprinted by him. It also had to be verified by the Public Prosecutor and his clerk. If the accused refused to sign his reasons had to be recorded. Article 63(3) was a fundamental requirement, which, if not adhered to, invalidated the statement. A signature and, if the accused was illiterate, a fingerprint, were necessary to show that the statement was that of the accused. Contrary to Ms Refahi's evidence to SIAC (see paragraph 104 below), there was no evidence that fingerprinting was a clear sign of a false confession.

For confessions to the Public Prosecutor, the burden of proof was on the defendant to show that it was not legal; the burden was reversed for confessions to the police. There was a corroboration requirement when the evidence of a co-accused was used against another co-accused. The report also analysed a series of Court of Cassation judgments where it had quashed State Security Court judgments because of improperly obtained confessions.

It had also laid down rules as to when confessions would and would not be admitted; where someone had been detained for longer than the prescribed time limit, there was a rebuttable presumption that the confession was improperly obtained.

The report went on to examine the judgments that had been given in the applicant's previous trials. For the Reform and Challenge case, the report noted that, in rejecting some of the defendant's claims to have been tortured into giving confessions, the State Security Court had relied on the evidence of the coroner, who had stated that he found no injuries on the men. In the millennium conspiracy trial the State Security Court had found no evidence whatsoever to support claims of false confessions made by some of the defendants and, as the defendants' lawyers had not referred them to the coroner for examination, there was no medical evidence to support their claims. The State Security Court had, however, heard from officers who were present when the confessions were given and who testified that there were no beatings of any sort. The State Security Court in its judgments had relied on the confessions (including reconstructions at the crime scene) and expert evidence. The evidence of the other defendants was likely to be determinative at the applicant's retrial, as they were important in his trials in absentia. The report also stated that, if alive, Al-Hamasher and Abu Hawsher would give evidence at any retrial.

For the Reform and Challenge trial, the applicant provided a copy of the Public Prosecutor's investigation report, which showed that the only evidence against him was the confession of Al-Hamasher. The confession was quoted in the report as stating that the applicant had provided encouragement for the attacks and congratulated the group afterwards. The only other evidence against him which was recorded in the report was that two books the applicant had written were found in the possession of Al-Hamasher and another defendant. The applicant also provided the grounds of appeal of Al-Hamasher which set out his claim that he had been detained and ill-treated for six days in GID custody then brought before the Public Prosecutor in the latter's office at the GID building. The applicant also produced a letter from the GID to Al-Hamasher's lawyer which stated that the original videotapes of his interrogation had been destroyed. The grounds of appeal stated that, at trial, a GID officer gave evidence that he had destroyed the tapes on the orders of his superior but refused to reveal the superior's identity. Al-Hamasher's grounds of appeal also stated that lawyers for another defendant had witnessed their client telling the Public Prosecutor that he had been ill-treated: the lawyers' evidence had not been accepted by the State Security Court, which preferred that of the Public Prosecutor. The grounds of appeal also summarised a medical report by a doctor who had examined the defendants five months after their interrogations. The doctor had found bruising and scarring on the men's bodies, particularly their feet and legs. Given the passage of time, the doctor was unable to conclude how the men's injuries had been obtained but observed that they could have been caused by the impact of hard objects. In Al-Hamasher's case, the doctor noted scars on his buttocks, which were consistent with being deliberately hit with a baton or similar object. The grounds of appeal also noted that family members of the defendants, including Al-Hamasher's mother, had observed scars on the defendants' feet and legs when they were first allowed to visit them. The GID interrogators were not produced for cross-examination at trial, nor were the defendants' medical records.

For the millennium conspiracy trial, the applicant submitted a copy of the Public Prosecutor's investigation report in that case, which showed that Abu Hawsher's confession was the predominant basis of the prosecution case against the applicant. A copy of his defence statement setting out his allegations of torture was also provided, which described injuries to the soles of his feet (causing the skin to fall off when he bathed), facial injuries, bruising and scarring. He maintained that his injuries were witnessed by his brother-in-law, his cellmates and a representative from the International Committee of the Red Cross. He also described how his statement had been changed many times until the officials in charge where satisfied with it. Afterwards, when he had been brought before the Prosecutor and alleged he had been tortured, the Public Prosecutor refused to listen. Letters were also provided which had been written by Abu Hawsher's lawyer to the applicant's representative, Ms Peirce, which summarised the steps the defence teams had taken to bring the torture allegations made by various defendants to the attention of the State Security Court, including the protests made by the United States Embassy concerning the ill-treatment of one defendant, Mr Ra'ed Hijazi, a US-Jordanian national (see also Amnesty's report at paragraph 114 below). The letter also stated that the defendants' families had testified as to the injuries they had seen.

The applicant also provided two statements on the trials by Ms Refahi: that which had been before SIAC and her further statement of 7 February 2010. The first statement, of 5 May 2006, set out the results of her interviews with defence lawyers and released defendants in each trial as to the manner in which the defendants had been tortured and given completed confession statements to sign. The torture was said to have include beatings with belts and whips, sleep deprivation and the administration of drugs to weaken resistance. She was told that, for false confessions, in was the practice to have the detainee sign and fingerprint the statement to prevent him retracting it later. Ms Refahi had inspected the case file in each case: Abu Hawsher's confession was fingerprinted.

The statement of 7 February 2010, summarised the results of a further visit she had made to Jordan in September 2009, where she had carried out further interviews with defendants and their lawyers. ‘Defendant A’ in the Reform and Challenge trial said he had been tortured for ten days (including through beatings on the soles of his feet) and questioned under torture on two or three occasions. While being moved he had heard a voice he recognised as belonging to another defendant; it was clear this defendant was also being tortured. On the tenth day he signed a confession drafted by the GID. On the eleventh day he was brought before the Public Prosecutor, who had the GID confession before him. He then signed an identical confession which had been drafted by the Public Prosecutor. There was no more torture after this but, on subsequent occasions when he appeared before the Public Prosecutor, the Prosecutor threatened him with further torture. He had told the State Security Court that he had been tortured but the court did not investigate. He was not medically examined until he had been detained for five months.

The United Nations Human Rights Council the Working Group on Jordan's Universal Periodic Review delivered its report on 3 March 2009 (A/HRC/11/29). The report noted Jordan's acceptance of certain recommendations geared towards eradicating torture. Following the report, Human Rights Watch welcomed Jordan's satisfaction at the ‘constant review’ of its human rights standards but found Jordan's rejection of some important recommendations geared towards eradicating torture to be ‘deeply disappointing’. The organisation called on Jordan to implement quickly recommendations to set up independent complaints mechanisms, allow unannounced prison visits and abolish the Police Courts, which were composed of police officers who heard allegations of torture against fellow officers. Similar recommendations were made by the United Kingdom Government in their statement to the Human Rights Council.

The United Nations Committee Against Torture, in its concluding observations on Jordan of 25 May 2010, welcomed Jordan's ongoing reform efforts, which included the establishment of the National Centre for Human Rights, an independent Ombudsman to receive complaints and a comprehensive plan for the modernisation of detention facilities. However, it was also deeply concerned by the ‘numerous, consistent and credible allegations of a widespread and routine practice of torture and ill-treatment of detainees in detention facilities, including facilities under the control of the General Intelligence Directorate’. It also found a ‘climate of impunity’ and an absence of proper criminal prosecutions for perpetrators. The Committee also expressed its concern at the limited number of investigations into allegations of torture and its serious concern at the lack of fundamental legal safeguards for detainees and the overuse of administrative detention, which placed detainees beyond judicial control. The Committee also recommended that the GID be placed under civilian authority, given that it continued to detain suspects arbitrarily and incommunicado and to deprive detainees of access to judges, lawyers or doctors. The Committee was also gravely concerned by the special court system in Jordan, which included the State Security Court, where military and security personnel alleged to be responsible for human rights violations were reportedly shielded from legal accountability and where procedures were not always consistent with fair trial standards. Finally, in respect of Article 15 of the Convention against Torture, the Committee found:

The United Nations Human Rights Committee's concluding observations of 18 November 2010 also praised Jordan's reforms, including the incorporation into domestic law of the ICCPR. However, the Human Rights Committee's concerns included: the high number of reported cases of torture and ill-treatment in detention centres, particularly in GID facilities; the absence of a genuinely independent complaints mechanism to deal with cases of alleged torture or ill-treatment by public officials, as well as the low number of prosecutions of such cases; the denial of prompt access to a lawyer and independent medical examinations to detainees; and the fact that NGOs had been denied access to detention facilities.

Accordingly, the Committee recommended the establishment of an effective and independent mechanism to deal with allegations of torture; proper investigations and prosecutions; immediate access for detainees to a lawyer of their choice and an independent medical examination; and the creation of a system of independent visits to all places of deprivation of liberty.

The Committee also expressed its concern at the limited organisational and functional independence of the State Security Court and recommended its abolition.

In his report of 5 January 2007 to the Human Rights Council, the UN Special Rapporteur on Torture, Manfred Nowak, noted inter alia that the GID had refused to allow him private visits with detainees and concluded that:

In this context, the Rapporteur also found :

The Rapporteur recommended the introduction of a series of basic safeguards for detainees, including better rules governing the admissibility of confessions. He also recommended the abolition of the State Security Court.

Amnesty International has produced a number of reports on the treatment of detainees in Jordan. Its most extensive report was published in July 2006, Amnesty International published its report entitled ‘Jordan:‘Your confessions are ready for you to sign’: detention and torture of political suspects’. The report criticised Jordan for maintaining a system of incommunicado detention which facilitated torture, particularly under the auspices of the GID, where torture was systemic and practised with impunity. The scope for abuse by the GID was far greater because GID officers were granted the authority of public prosecutors (and thus judicial power), allowing the GID itself to prolong periods of detention for the purposes of interrogation. It was a virtually impossible task for a detainee to prove he had been tortured by the GID when it was the detainee's word against that of GID officers. The report considered that the introduction of monitoring by the NCHR and the ICRC were positive if qualified steps and both organisations had been prevented from meeting all detainees in GID custody.

Although the 2001 amendments to Article 66 of the Code of Criminal Procedure had allowed detainees access to their lawyers, even when in incommunicado detention, in apparent contravention of these provisions, the general practice in state security cases was for detainees to be held in prolonged pre-trial incommunicado detention. There were also apparent contraventions of the right to have a lawyer present during examinations before the Public Prosecutor. The State Security Court had been ‘largely supine’ in the face of torture allegations, failing properly to investigate allegations. Trials before it were frequently unfair; it was prone to convict defendants on the basis of confessions alleged to be extracted by torture. The report noted that, over the previous ten years, one hundred defendants had alleged before the State Security Court that they had been tortured into making confessions; allegations had been made in fourteen such cases in 2005, yet the State Security Court had failed adequately to investigate the claims. Appeal to the Court of Cassation had not been an adequate safeguard.

The report described nine case studies of confessions extracted by torture by the GID in state security cases, including that of the millennium conspiracy trial. The report recorded that at least four of the defendants, including Abu Hawsher, had been tortured during GID interrogation, their bodies reportedly showing marks of torture when relatives and lawyers saw them for the first time. Witnesses testified that, in the course of a reconstruction at the crimes scenes, they had seen one defendant, Mr Sa'ed Hijazi, propped up by two guards apparently unable to stand on his own. In the case of another, Mr Ra'ed Hijazi, (a US-Jordanian national) a doctor had testified that he had contracted severe pneumonia whilst held in incommunicado detention. The United States consul, who was said to have seen marks of torture on him, could not give evidence at trial for reasons of diplomatic immunity.

The report also concluded that the MOU between the UK and Jordan was inappropriate given Jordan's failure to observe the absolute prohibition on torture and, moreover, post-monitoring return could not replace the requirements of international law that there be systemic legislative, judicial and administrative safeguards to prevent torture. Monitoring, even by professional organisations, was insufficient to prevent it.

In its report ‘Suspicious Sweeps: the General Intelligence Department and Jordan's Rule of Law Problem’ of 18 September 2006 the organisation documented cases of ill-treatment by the GID. The report also contained the following section on prosecutors before the State Security Court :

In its report of 8 October 2008, ‘Torture and Impunity in Jordan's Prisons’, which was based on prisons visits it had carried out in 2007 and 2008, Human Rights Watch concluded that torture remained widespread and routine in Jordan's prisons. The organisation received allegations of ill-treatment from 66 of the 110 prisoners it interviewed. It also concluded that prison guards tortured inmates because prosecutors and judges did little to pursue them. The report noted that willingness of the Jordanian Government to grant access to prisons was commendable and reflected a positive commitment to reform. However, the report also noted that the public concern of Jordanian leadership had not shown lasting effects on the ground. Torture was inflicted routinely when prisoners broke prison rules, made requests for doctors, telephone calls or visits, or make complaints. Islamist prisoners faced greater abuse than others. Complaints of torture had decreased but remained a common occurrence. Torture was not a general policy, although high-ranking prison officials had ordered beatings. Torture was a ‘tolerated practice’ because mechanisms for individual accountability were lacking; the Government had quietly taken some initial steps to provide greater opportunities for redress, but had not vigorously pursued them.

In the section of its World Report of 2010 on Jordan, Human Rights Watch also commented that further positive reforms such as the NCHR anti-torture training programmes, were far from sufficient considering Jordan's lack of political will and effective mechanisms to bring perpetrators to justice.

In its 2005 Annual Report, the NCHR recognised that although, Jordanian law was clear as to the illegality of a conviction based on a confession which had been obtained by coercion, it was difficult for defendants to prove that confessions had been so obtained, especially given the lack of witnesses and long periods of detention which meant that forensic physicians could not detect abuse.

In its 2007 Report the NCHR noted that information on criminal trials revealed ‘a clear shortcoming — in many cases — in commitment to the basic criteria of a just trial’. It referred in particular to the trying of civilians before the State Security Court whose judges were ‘militarily incline[d]’, which undermined the principle of judicial independence and reduced the guarantees of a fair trial.

In its 2008 Report the NCHR noted the continuing difficulties in detecting torture, including the prolonged period of detention for which detainees were held and the fact that those responsible for coercion of defendants did not write out their statements, meaning the statements became legally conclusive evidence. The NCHR also noted that, for part of the year, it had been banned from visiting prisons. There had, however, been a number of positive anti-torture measures introduced by the Government.

In its 2009 Report, the NCHR noted that anti-torture efforts were still ‘mediocre and hesitant’. Problems included the Crime Prevention Law, which allowed incommunicado detention without judicial monitoring; the State Security Act, which allowed detention for seven days before referral to a judge; and that a statement made by a suspect without the presence of the Public Prosecutor was admissible if it was ‘submitted to the public prosecution along with a piece of evidencefor the circumstances under which it has been made, and that the suspect has made that statement voluntarily.’

The United States Department of State 2009 Human Rights Report on Jordan recorded local and international NGOs' concerns that torture remained widespread, although they had also noted a decrease in the number of complaints made. The NGOs has also found that complaints mechanisms had improved but additional reforms were required. The report also stated:

The 2010 Report recorded that Jordanian law prohibited torture; however, international NGOs continued to report incidences of torture and widespread mistreatment in police and security detention centres. In respect of arrest and trial procedures, the Report noted that:

The Report also commented that Jordanian law provided for an independent judiciary; however, the judiciary's independence in practice was compromised by allegations of nepotism and the influence of special interests.

One hundred and forty-nine States are parties to the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘UNCAT’), including all Member States of the Council of Europe. Article 1 of the Convention defines torture as:

Article 1(2) provides that it is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 requires States to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 4 requires each State Party to ensure that all acts of torture are offences under its criminal law.

Article 3 provides:

Article 12 provides that each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 15 requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

In A and others (no. 2) v Secretary of State for the Home Department [2005] UKHL 41 the House of Lords considered whether SIAC could lawfully admit evidence which had or may have been obtained by torture in another State without the complicity of British officials. On the basis of the common law, the case-law of this Court, and public international law, including UNCAT, their Lordships concluded that it could not.

Their Lordships were divided as to the appropriate test which SIAC should apply in determining whether evidence should be admitted. All of their Lordships agreed that a conventional approach to the burden of proof was not appropriate given the nature of SIAC procedures. An appellant in a SIAC appeal could not be expected to do more than raise a plausible reason that evidence might have been obtained by torture. Where he did so, it was for SIAC to initiate relevant inquiries. The majority (Lords Hope, Rodger, Carswell and Brown) then went on to find that SIAC should adopt the test of admissibility laid down in Article 15 of UNCAT. They held that SIAC should thus consider whether it was established on the balance of probabilities that the evidence was obtained by torture. If so satisfied, SIAC should not admit the evidence but, if it were doubtful, it should admit the evidence, bearing its doubt in mind when evaluating it. By contrast, Lords Bingham, Nicholls and Hoffmann found that a balance of probabilities test could never be satisfied and would undermine the practical efficacy of UNCAT. They proposed a lower test, namely that where SIAC concluded that there was a real risk that the evidence had been obtained by torture, it should not admit the evidence.

In England and Wales, section 76(2) of the Police and Criminal Evidence Act 1984 provides:

This test is primarily for the trial judge to determine, if necessary by holding a voire dire. In R v. Mushtaq [2005] 1 WLR 1513, the House of Lords held that the logic of section 76(2) required that, if a confession is admitted, a jury should be directed that if they considered that the confession was, or may have been, obtained by oppression or any other improper conduct they should disregard it.

In Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, the Supreme Court of Canada unanimously found that Canadian and international law did not permit deportation where on the evidence there was a substantial risk of torture. It did not find that in all cases deportation would be unconstitutional (and a refugee's rights could be balanced against the threat he or she posed) but the balance would usually come down against expelling the refugee. The court also made the following comment on reliance on assurances against torture (paragraphs 124 and 125):

In Mahjoub v. Canada (Minister of Citizenship and Immigration) 2006 FC 1503, which concerned removal to Egypt, the Federal Court of Canada addressed two issues: whether the Minister should rely on evidence obtained by torture in assessing an individual's risk to national security and whether it was appropriate to rely on assurances from a country where torture was systematically practiced.

For the first issue, the court, having reviewed the relevant Canadian authorities and A and others (no. 2) (see paragraph 136 and 137 above), found that it was wrong in law to rely on evidence likely to have been obtained by torture; however, there had to be a credible evidentiary basis linking torture to the specific evidence at issue in order to justify its exclusion. The balance of probabilities test used in Singh (see paragraphs 139-140 above) was not appropriate in a national security case where the applicant did not see the evidence against him. Instead, where an issue was raised by an applicant offering a plausible explanation why evidence was likely to have been obtained by torture, the decision-maker should then consider this issue in light of the public and classified information. Where the decision-maker found there were reasonable grounds to suspect that evidence was likely obtained by torture, it should not be relied upon in making a determination.

For the second, the court found that it was patently unreasonable for the executive decision-maker to have relied on Egypt's assurances against ill-treatment where she concluded that there was no substantial risk of torture of Mahjoub. It stated:

In relying on the assurances, the executive had failed to take into account the human rights record of the Egyptian Government as well as its record of compliance with assurances. This was particularly troubling in light of the extensive human rights reports on the poor human rights record of Egypt.

The two diplomatic notes which contained the assurances made no mention of monitoring mechanisms, and contained no specific commitments not to abuse Mahjoub. There was nothing to suggest Canada had sought such a monitoring mechanism from Egypt.

In Lai Cheong Sing v. Canada (Minister of Citizenship and Immigration) 2007 FC 361, the applicants' return to China was sought so they could stand trial for smuggling and bribery. A diplomatic note was provided in which China gave assurances they would not be sentenced to death or tortured. The Federal Court found that the executive decision-maker had been entitled to rely on the assurance against the imposition of the death penalty as the Supreme People's Court would ensure this would be respected.

For the risk for torture, the decision-maker had recognised that assurances were in themselves an acknowledgement that there was a risk of torture in the receiving country but she had found these considerations were offset by the applicants' notoriety, which would protect them. The court found that she had erred in doing so. First, she had failed to address the applicants' argument that assurances should not be sought when torture was sufficiently systematic or widespread and, in particular, had failed to assess whether it was appropriate to rely on assurances at all from China. Second, the court found an assurance should at the very least fulfil some essential requirements to ensure that it was effective and meaningful. Unlike the death penalty, torture was practised behind closed doors and was denied by the States where it occurred. Even monitoring mechanisms had proved problematic since, for example, people who have suffered torture or other ill-treatment were often too fearful of retaliation to speak out. The decision-maker therefore erred by failing to determine whether the assurances met the essential requirements to make them meaningful and reliable and by simply relying on the fact that the applicants' notoriety would protect them.

This conclusion was patently unreasonable. For torture to become known, some compliance and verification mechanisms would have to be in place (i.e. effective monitoring systems by independent organisations). Therefore, notoriety would be of no avail to the applicants if torture was practised without anybody every knowing of it.

The court rejected the applicants' submission that an unfair trial in China would amount to cruel and unusual treatment where the consequence was prolonged imprisonment. The court found that the decision-maker had been entitled to conclude that the trial would be fair when, inter alia, there was no evidence that the case against the applicants had been obtained by torture of witnesses.

The Government submitted that the materials on diplomatic assurances, which the applicant and third parties had provided (see paragraphs 141–146 above), all spoke of what the practice of courts should be, rather than the established requirements of the Convention. This Court's approach had been to find that assurances were not in themselves sufficient to prevent ill-treatment; however, the Court would also examine whether such assurances provided in their practical application a sufficient guarantee against ill-treatment (see Babar Ahmad and Others v. the United Kingdom(dec.) nos. 24027/07, 11949/08 and 36742/08, § 106, 6 July 2010). Furthermore, contrary to the applicant's submission (see paragraph 168 below), there was no principle in the Court's case-law that, where there was a real risk of ill-treatment owing to systemic torture in the country of destination, assurances were incapable of eliminating that risk.

SIAC had followed the Court's approach to assurances. It had received a wide variety of evidence, both as to the meaning and likely effect of the assurances and the current situation in Jordan. It had examined that evidence with great care in its determination. All the factors it had relied on in reaching its conclusions continued to apply with at least as much force as they did at the time of its determination. Its conclusions could not be altered by the critical reports which had been published since its determination; those reports were of a general nature. If anything, the evidence showed that the human rights situation was improving and had certainly not deteriorated since SAIC's determination.

The Government submitted that SIAC had found that the assurances given by Jordan in the present case would suffice because:

For the first, the Government reiterated that the assurances contained in the MOU had been given in good faith and approved at the highest levels of the Jordanian Government. They were intended to reflect international standards. There was no lack of clarity in them, especially when the MOU was interpreted in its diplomatic and political context.

Proper interpretation of the terms of the MOU provided for the applicant to be brought promptly before a judge or other judicial officer (which, in Jordanian law, would include the Public Prosecutor) and for him to have access to independent legal and medical advice. To criticise the MOU because it was not legally binding (as the applicant had) was to betray a lack of an appreciation as to how MOUs worked in practice between states; they were a well-established and much used tool of international relations. There were, as SIAC had found, sound reasons why Jordan would comply with this particular MOU. It was in the interests of both Governments that the assurances be respected; as SIAC had found, Jordan's position in the Middle East and its relationship with the United States did not change this.

SIAC had also found that, notwithstanding the applicant's submission to the contrary, it was in the interests of both Governments properly to investigate any alleged breaches of the MOU. In the present case, it was also of considerable importance that the GID, which would detain the applicant on return, had ‘signed up’ to the MOU, had been involved in its negotiation, had accepted its monitoring provisions, and had been made aware of the consequences of breaching the assurances. The Government further relied on SIAC's findings in the appeal of VV (see paragraph 75 above), which updated and confirmed SIAC's determination in the present applicant's case. In VV SIAC had accepted Mr Layden's evidence that the bilateral relationship between the United Kingdom and Jordan, upon which the MOU rested, was a close one.

For the second, the Government recalled that SIAC had found the applicant to be a well-known figure in the Arab world and that, regardless of the MOU, his return and subsequent treatment would be a matter of intense local and international media interest and scrutiny. Jordanian civil society, including Jordanian parliamentarians, would follow the applicant's case with interest. Any ill-treatment would cause considerable outcry and would be destabilising for the Jordanian Government. As SIAC had found, those responsible for his detention would be aware of these factors.

For the third, the Government emphasised that, although SIAC had criticised the capacity of the Adaleh Centre, it had by no means discounted the effect of monitoring; indeed, it had found that monitoring would have a positive effect in reducing the risk of ill-treatment. Moreover, since SIAC's determination, there had been a considerable increase in Adaleh's expertise.

As Mr Layden's statements indicated, it had received significant European Commission funding; it had started monitoring through its subsidiary, the NTCT; it had obtained practical experience in visiting detainees, included those held by the GID; it had obtained experience working with other NGOs; it had considerably increased its staff, including medical experts; and it had demonstrated its independence from the government, particularly the GID, by publishing a study on torture. Contrary to the applicant's suggestion, it had retained its not-for-profit status (and its independence) despite the criticism it had received from other NGOs for signing the terms of reference. The Government further submitted that the applicant's criticisms of Adaleh were, in any event, misplaced because the actual monitoring would be carried out by Adaleh's subsidiary, the NTCT. The Government also submitted that, whatever the general problems with human rights monitoring in Jordan, the MOU and the terms of reference provided Adaleh with a clear and detailed mandate and it was clear to all parties how monitoring visits were to proceed. If Adaleh encountered any problems, it could alert the United Kingdom Embassy in Amman. The Government also underlined that, in accordance with the Note Verbale annexed to Mr Layden's second statement (see paragraph 90 above), monitoring would continue for as long as the applicant was detained.

For these reasons, the Government submitted there were considerable distinctions between the assurances previously considered by the Court and those provided by Jordan. Those assurances, when taken with the monitoring provisions, were sufficient to ensure that there would be no violation if the applicant were deported to Jordan.

The applicant submitted that, as a matter of law, proper regard had to be given to the international community's criticism of assurances. The international consensus was that assurances undermined the established international legal machinery for the prohibition on torture and, if a country was unwilling to abide by its international law obligations, then it was unlikely to abide by bilateral assurances. International experience also showed that proof of compliance was notoriously difficult. The applicant also submitted that, following the approach taken by the Supreme Court of Canada in Suresh (see paragraph 152 above), it was also appropriate to distinguish between an assurance that a State would not do something legal (such as carry out the death penalty) and an assurance that it will not do something illegal (such as commit torture). Moreover, this Court's case law, particularly Shamayev and Ismoilov, cited above, demonstrated that, once a particular risk was shown to apply to an individual, assurances would not be sufficient, especially when torture was also shown to be systemic in the country of destination. He submitted, therefore, assurances would only suffice where

These criteria had not been met in his case.

The applicant relied on the evidence set out at paragraphs 106–124 above, which, he submitted, demonstrated that Jordanian prisons were beyond the rule of law. Torture was endemic, particularly for GID prisons and Islamist prisoners, who were frequently beaten. There was a systemic failure to carry out prompt and effective investigations of allegations of torture. This evidence was even more compelling than at the time of SIAC's determination. Moreover, the culture of impunity that prevailed in the GID rendered it incapable of abiding by the assurances, even if its leadership wanted to. Jordan could not be relied upon to meet its international human rights obligations. It had refused to submit to any form of enforcement of those obligations; for instance, it had refused to ratify either Article 22 to UNCAT (the right of individual petition to the Committee against Torture) or the Optional Protocol to UNCAT (which established the Sub-Committee on the Prevention of Torture and gave it, inter alia, the right to visit places of detention).

The Jordanian Government's assurances in his case also had to be seen in their proper political context. Although strategically important, Jordan was unstable, reliant on American patronage, prone to unrest and vulnerable to Islamism. Thus, while he did not contest that external relations between Jordan and the United Kingdom were close, the applicant considered these countervailing factors meant the bilateral relationship between the two countries was insufficient to guarantee adherence to the MOU.

Against this background, his high profile would not protect him but would in fact place him at greater risk; in fact, it was his profile that necessitated the MOU in the first place. He had previously been tortured because he had publically criticised Jordan's foreign policy. Jordan's extradition request had been withdrawn because his presence was not considered to be desirable. That assessment could only have been confirmed by SIAC's conclusions as to the national security threat he posed to the United Kingdom. Moreover, Jamil el Banna, Bishar al Rawi and Binyam Mohamed, who had been detained by the United States authorities at Guantánamo Bay and elsewhere, had stated that they had been interrogated at length as to their links with him. If deported, he would be regarded as a significant threat to the country and the Middle East. In such an unstable environment, the Jordanian Government's calculations as to whether to abide by the MOU could well change. These factors, when taken with the culture of impunity in the GID, meant his high profile would operate, not as a source of protection, but as a magnet for abuse. Moreover, it was irrational for SIAC to have found that Jordan would abide by the assurances because an allegation of ill-treatment — whether true or not — could be just as destabilising as proof that the allegation was correct. On this finding, there would be no reason for the Jordanian authorities not to ill-treat the applicant, as it would always be open to him to make a false allegation.

There were also a number of deficiencies in the MOU. It was not clear what was meant by ‘judge’ in respect of the guarantee that he would be ‘brought promptly before a judge’; it could simply mean that he will brought before a prosecutor acting as an administrative judge. It was not also clear whether he would have access to a lawyer during the interrogation period of his detention. It was also not clear whether MOU prohibited rendition, which was made more likely by the interest the United States had in him and the evidence of Jordan's participation in previous renditions. Finally, it was not clear whether, as a matter of Jordanian law, the assurances in the MOU were legal and enforceable when they had not been approved by the Jordanian Parliament. He submitted a statement to that effect from the head of another Jordanian NGO, the Arab Organisation for Human Rights, which had declined to take on the role of monitoring body for that reason.

In respect of monitoring of the assurances, he adopted the views of the third party interveners that there was no independent monitoring in Jordan, a factor which, he submitted, had to weigh in the balance in considering Adaleh's capabilities. For Adaleh itself, the striking feature of the evidence before the Court was that, even in the intervening time since SIAC's determination, it was still without any practical experience of human rights monitoring and was instead mostly concerned with training and advocacy work. Moreover, although Adaleh had produced one report on combating torture in 2008, it was significant that the report made no direct criticism of the GID.

Notwithstanding Adaleh's own limitations, the nature of the monitoring provided for by the terms of reference was also limited. Consistently with those terms of reference, Jordan could limit access to one visit every two weeks. In addition, no provision was made for independent medical examinations; Adaleh would not enjoy unfettered access to the entire place of the applicant's detention, as it would merely be entitled to a private visit with him; there was no mechanism for Adaleh to investigate a complaint of ill-treatment; neither the applicant nor his lawyers would have access to Adaleh's reports to the Jordanian and United Kingdom Governments; and it appeared that monitoring would be limited to three years. All of these factors meant that Adaleh's monitoring fell short of international standards, such as those set out in the Optional Protocol to UNCAT. Moreover, even assuming that Adaleh was able to seek entry to the applicant's place of detention, in order to escape monitoring, the authorities would simply have to tell them that the applicant did not wish to see them.

The third party interveners (see paragraph 5 above) submitted that the use of diplomatic assurances was a cause for grave concern. Such bilateral, legally unenforceable diplomatic agreements undermined the ius cogens nature of the absolute prohibition on torture and the non-refoulement obligation. They also undermined the binding, multilateral, international legal system which held states to these obligations. Assurances had been widely condemned as wrong in principle and ineffective in practice by international experts such as the UN High Commissioner for Human Rights, the Council of Europe Committee for the Prevention of Torture, as well as the United Kingdom Joint Committee on Human Rights (see paragraphs 141– 145 above).

More practically, there were four significant weaknesses in assurances. First, they were unable to detect abuse. Torture was practised in secret and sophisticated torture techniques were difficult to detect, particularly given the reluctance of victims to speak frankly to monitors for fear of reprisals.

Second, the monitoring regimes provided for by assurances were unsatisfactory. For example, they contrasted unfavourably with the International Committee of the Red Cross' practice of never visiting single detainees so as to avoid involuntary identification of those who complain of abuse. The third parties also noted that the UN Special Rapporteur had also rejected the proposition that visits to a single detainee could be an effective safeguard. It was also noteworthy that the Committee for the Prevention of Torture had declined to monitor compliance with assurances.

Third, frequently, local monitors lacked the necessary independence. They did not possess the authority to gain access to places of detention, to lodge complaints or to exert pressure on the authorities to halt any abuses. They were themselves subject to harassment and intimidation.

Fourth, assurances also suffered from a lack of incentives to reveal breaches as neither Government concerned would wish to admit to breaching its international obligations and, in the case of the sending Government, to jeopardise future deportations on grounds of national security. As unenforceable promises from one State to another, assurances could be breached without serious consequences.

The third parties also submitted that their own reports (summarised at paragraphs 112–118 above) had documented Jordan's longstanding record of torture and ill-treatment of terrorist and national security suspects. In their submission, those reports showed that the GID had continually frustrated efforts to carry out monitoring. For example, in 2003 the International Committee of the Red Cross had been forced to suspend visits owing to breaches in visitation procedures by the GID; the UN Special Rapporteur had been prevented from carrying out private interviews. The GID continued to deny all allegations of ill-treatment. Internal redress for allegations was non-existent and criminal sanctions were inadequate. The few officers who had been convicted of torture had been given excessively lenient sentences.

The view of the third parties, which was based on interviews between Human Rights Watch and the head of Adaleh, was that the centre was a for-profit company which had not carried out any inspections. Nor had the centre privately or publicly expressed any concerns of ill-treatment in Jordanian detention facilities.

First, the Court wishes to emphasise that, throughout its history, it has been acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a grave threat to human rights (see, inter alia, Lawless v. Ireland (no. 3), 1 July 1961, §§ 28–30, Series A no. 3; Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, Öcalan v. Turkey [GC], no. 46221/99, § 179, ECHR 2005-IV; Chahal, cited above, § 79; A and Others v. the United Kingdom, cited above, § 126; A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010). Faced with such a threat, the Court considers it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances (Boutagni v. France, no. 42360/08, § 45, 18 November 2010; Daoudi v. France, no. 19576/08, § 65, 3 December 2009).

Second, as part of the fight against terrorism, States must be allowed to deport non-nationals whom they consider to be threats to national security. It is no part of this Court's function to review whether an individual is in fact such a threat; its only task is to consider whether that individual's deportation would be compatible with his of her rights under the Convention (see also Ismoilov and Others, cited above, §126).

Third, it is well-established that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country. Article 3 is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion (Saadi v. Italy [GC], no. 37201/06, §§ 125 and 138, ECHR 2008-…).

Fourth, the Court accepts that, as the materials provided by the applicant and the third party interveners show, there is widespread concern within the international community as to the practice of seeking assurances to allow for the deportation of those considered to be a threat to national security (see paragraphs 141- 145 above and Ismoilov and Others, cited above, §§ 96–100). However, it not for this Court to rule upon the propriety of seeking assurances, or to assess the long term consequences of doing so; its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment. Before turning to the facts of the applicant's case, it is therefore convenient to set out the approach the Court has taken to assurances in Article 3 expulsion cases.

In any examination of whether an applicant faces a real risk of ill-treatment in the country to which he is to be removed, the Court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see Saadi, cited above, § 148).

In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human rights situation in the receiving State excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances (see, for instance, Gaforov v. Russia, no. 25404/09, § 138, 21 October 2010;Sultanov v. Russia, no. 15303/09, § 73, 4 November 2010;Yuldashev v. Russia, no. 1248/09, § 85, 8 July 2010; Ismoilov and Others, cited above, §127).

More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State's practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:

In applying these factors to the present case, the Court wishes to state that it has only considered the open evidence led before SIAC, the additional evidence which has been submitted to the Court (summarised at paragraphs 83–92 above), and publicly available reports on the human rights situation in Jordan (summarised at paragraphs 106–124 above). The Court has not received the additional closed evidence that was before SIAC, nor has it been asked to consider that evidence. Similarly, since it has not considered SIAC's closed judgment, it is of no relevance to the Court's own, ex nunc assessment of whether there would be a violation of Article 3 that SIAC, in forming its own conclusion on Article 3, considered additional, closed evidence that was not recorded in its open determination.

Turning therefore to the evidence before it, the Court first notes that the picture painted by the reports of United Nations bodies and NGOs of torture in Jordanian prisons is as consistent as it is disturbing. Whatever progress Jordan may have made, torture remains, in the words of the United Nations Committee Against Torture, ‘widespread and routine’ (see paragraph 107 above). The Committee's conclusions are confirmed by the other reports summarised at paragraphs 106–124 above, which demonstrate beyond any reasonable doubt that torture is perpetrated systematically by the General Intelligence Directorate, particularly against Islamist detainees. Torture is also practiced by the GID with impunity. This culture of impunity is, in the Court's view, unsurprising: the evidence shows that the Jordanian criminal justice system lacks many of the standard, internationally recognised safeguards to prevent torture and punish its perpetrators. As the Human Rights Committee observed in its concluding observations, there is an absence of a genuinely independent complaints mechanism, a low number of prosecutions, and the denial of prompt access to lawyers and independent medical examinations (see paragraph 108 above). The conclusions of the Committee Against Torture (which are corroborated by the reports of Amnesty International, Human Rights Watch and the Jordanian National Centre for Human Rights) show that these problems are made worse by the GID's wide powers of detention and that, in state security cases, the proximity of the Public Prosecutor to the GID means the former provides no meaningful control over the latter (see paragraphs 107, 112–113, 116 and 119–122 above). Finally, as the Special Rapporteur, Amnesty International and the NCHR confirm, there is an absence of co-operation by the GID with eminent national and international monitors (see paragraphs 109 and 121 above).

As a result of this evidence it is unremarkable that the parties accept that, without assurances from the Jordanian Government, there would be a real risk of ill-treatment of the present applicant if he were returned to Jordan. The Court agrees. It is clear that, as a high profile Islamist, the applicant is part of a category of prisoners who are frequently ill-treated in Jordan. It is also of some relevance that he claims to have previously been tortured in Jordan (see his asylum claim, summarised at paragraph 7 above). However, consistent with the general approach the Court has set out at paragraphs 187–189 above, the Court must also consider whether the assurances contained in the MOU, accompanied by monitoring by Adaleh, remove any real risk of ill-treatment of the applicant.

In considering that issue, the Court observes that the applicant has advanced a number of general and specific concerns as to whether the assurances given by Jordan are sufficient to remove any real risk of ill-treatment of him. At the general level, he submits that, if Jordan cannot be relied on to abide by its legally binding, multilateral international obligations not to torture, it cannot be relied on to comply with non-binding bilateral assurances not to do so. He has also argued that assurances should never be relied on where there is a systematic problem of torture and ill-treatment and further argues that, even where there is evidence of isolated, non-systemic acts of torture, reliance should only be placed on assurances where those are supported by the independent monitoring of a body with a demonstrable track-record of effectiveness in practice. The Court does not consider that these general submissions are supported by its case-law on assurances. As the general principles set out at paragraphs 187–189 above indicate, the Court has never laid down an absolute rule that a State which does not comply with multilateral obligations cannot be relied on to comply with bilateral assurances; the extent to which a State has failed to comply with its multilateral obligations is, at most, a factor in determining whether its bilateral assurances are sufficient. Equally, there is no prohibition on seeking assurances when there is a systematic problem of torture and ill-treatment in the receiving State; otherwise, as Lord Phillips observed (see paragraph 57 above), it would be paradoxical if the very fact of having to seek assurances meant one could not rely on them.

Moreover, the Court does not consider that the general human rights situation in Jordan excludes accepting any assurances whatsoever from the Jordanian Government. Instead, the Court considers the United Kingdom and Jordanian Governments have made genuine efforts to obtain and provide transparent and detailed assurances to ensure that the applicant will not be ill-treated upon return to Jordan. The product of those efforts, the MOU, is superior in both its detail and its formality to any assurances which the Court has previously examined (compare, for example, the assurances provided in Saadi, Klein and Khaydarov, all cited at paragraph 189(ii) above). The MOU would also appear to be superior to any assurances examined by the United Nations Committee Against Torture and the United Nations Human Rights Committee (see Agiza, Alzery and Pelit, summarised at paragraphs 147–151 above). The MOU is specific and comprehensive. It addresses directly the protection of the applicant's Convention rights in Jordan (see paragraphs 1–8 of the MOU, set out at paragraphs 77 and 78 above). The MOU is also unique in that it has withstood the extensive examination that has been carried out by an independent tribunal, SIAC, which had the benefit of receiving evidence adduced by both parties, including expert witnesses who were subject to extensive cross-examination (see paragraphs 28and 189(xi) above).

The Court also agrees with SIAC's general assessment that the assurances must be viewed in the context in which they have been given. Although the Court considers that, in his statements to the Court (summarised at paragraphs 83–90 above), Mr Layden has a tendency to play down the gravity of Jordan's record on torture, by virtue of his position he is able to speak with some authority as to the strength of the United Kingdom-Jordanian bilateral relationship as well as the importance of the MOU to that relationship. From Mr Layden's statements, and the further evidence before SIAC, the Court considers that there is sufficient evidence for it to conclude that the assurances were given in good faith by a Government whose bilateral relations with the United Kingdom have, historically, been very strong (see Babar Ahmad and Others and Al-Moayad, both cited at paragraph 189(vii) above). Moreover, they have been approved at the highest levels of the Jordanian Government, having the express approval and support of the King himself. Thus, it is clear that, whatever the status of the MOU in Jordanian law, the assurances have been given by officials who are capable of binding the Jordanian State (cf.Ben Khemais, Garayev, Baysakov and others, and Soldatenko, all cited at paragraph 189(iii)above). Just as importantly, the assurances have the approval and support of senior officials of the GID (cf. Chahal, cited at paragraph 189(iv) above). In the Court's view, all of these factors make strict compliance with both the letter and spirit of the MOU more likely.

Similarly, although the applicant has argued that his high profile would place him at greater risk, the Court is unable to accept this argument, given the wider political context in which the MOU has been negotiated. It considers it more likely that the applicant's high profile will make the Jordanian authorities careful to ensure he is properly treated; the Jordanian Government is no doubt aware that not only would ill-treatment have serious consequences for its bilateral relationship with the United Kingdom, it would also cause international outrage. Admittedly, as it was put by the Federal Court of Canada in Lai Sing (see paragraph 154 above), notoriety is of no avail if torture is practised without anybody ever knowing it. However, that argument carries less weight in the present case not least because of the monitoring mechanisms which exist in the present case and which were wholly absent in Lai Sing.

In addition to general concerns about the MOU, the Court notes that the applicant has relied on six specific areas of concern as to the meaning and operation of the assurances. He submits that the MOU is not clear as to:

The Court will consider each concern in turn.

For the first, the Court considers that the MOU would have been considerably strengthened if it had contained a requirement that the applicant be brought within a short, defined period after his arrest before a civilian judge, as opposed to a military prosecutor. This is all the more so when experience has shown that the risk of ill-treatment of a detainee is greatest during the first hours or days of his or her detention (see the views of the United Nations Committee Against Torture at paragraph 156 above; the Committee for the Prevention of Torture 9^th General Report, quoted in Panovits v. Cyprus, no. 4268/04, § 46, 11 December 2008). However, the Court notes that, although it is unusual for lawyers to accompany detainees to appearances before the Public Prosecutor, as a matter of Jordanian law, the applicant would be entitled as of right to have a lawyer present (see Mr Al-Khalila and Mr Najdawi's report at paragraph 97 above). Given that the applicant's appearance before the Public Prosecutor within twenty-four hours of his return would be the first public opportunity for the Jordanian authorities to demonstrate their intention to comply with the assurances, the Court considers that it would be unlikely for the Public Prosecutor to refuse to allow a lawyer to be present. Moreover, the applicant's first appearance before the Public Prosecutor must be seen in the context of the other arrangements which are in place for his return. For instance, it is likely that the monitors who would travel with the applicant from the United Kingdom to Jordan would remain with him for at least part of the first day of detention in Jordan. This compares favourably with the delay of five weeks in obtaining access which the UN Human Rights Committee found to be deficient in Alzery (see paragraph 151 above) and significantly diminishes any risk of ill-treatment that may have arisen from a lack of clarity in the MOU.

For the second concern, the absence of a lawyer during interrogation, SIAC found that it was unlikely that the applicant would have a lawyer present during questioning by the GID, that it was likely that he would have a lawyer present for any questioning by the Public Prosecutor and very likely that he would have such representation for any appearance before a judge. Denial of access to a lawyer to a detainee, particularly during interrogation is a matter of serious concern: the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment (Salduz, cited above, § 54). However, in the present case, that risk is substantially reduced by the other safeguards contained in the MOU and the monitoring arrangements.

Third, the Court would discount the risk that the applicant would be ill-treated if questioned by the CIA, that he would be placed in a secret GID or CIA ‘ghost’ detention facility in Jordan, or that he would be subject to rendition to a place outside Jordan. In Babar Ahmad and Others, cited above, §§ 78–82 and 113–116, the Court observed that extraordinary rendition, by its deliberate circumvention of due process, was anathema to the rule of law and the values protected by the Convention. However, in that case, it found the applicants' complaints that they would be subjected to extraordinary rendition to be manifestly ill-founded. Although the United States, which had requested their extradition, had not given any express assurances against rendition, it had given assurances that they would be tried before federal courts; the Court found rendition would hardly be compatible with those assurances.

Similar considerations apply in the present case. Although rendition is not specifically addressed in the MOU, the MOU clearly contemplates that the applicant will be deported to Jordan, detained and retried for the offences for which he was convicted in absentia in 1998 and 1999. If he is convicted, he will be imprisoned in a GID detention facility. It would wholly incompatible with the MOU for Jordan to receive the applicant and, instead of retrying him, to hold him at an undisclosed site in Jordan or to render him to a third state. By the same token, even if he were to be interrogated by the United States authorities while in GID detention, the Court finds no evidence to cast doubt on SIAC's conclusion that the Jordanian authorities would be careful to ensure that the United States did not ‘overstep the mark’ by acting in a way which violated the spirit if not the letter of the MOU.

Fourth, it may well be that as matter of Jordanian law the MOU is not legally binding. Certainly, as an assurance against illegal behaviour, it should be treated with more scepticism than in a case where the State undertakes not to do what is permitted under domestic law (see paragraph 189(v) above). Nevertheless, SIAC appreciated this distinction. It is clear from its determination that SIAC exercised the appropriate caution that should attach to such an assurance (see its general findings on the MOU at paragraphs 29 et seq. above). The Court shares SIAC's view, not merely that there would be a real and strong incentive in the present case for Jordan to avoid being seen to break its word but that the support for the MOU at the highest levels in Jordan would significantly reduce the risk that senior members of the GID, who had participated in the negotiation of the MOU, would tolerate non-compliance with its terms.

Fifth, the applicant has relied on the discrepancy between the Arabic and English versions of the MOU as evidence that Adaleh will only have access to him for three years after his deportation. However, the Court considers that this issue has been resolved by the diplomatic notes which have been exchanged by the Jordanian and United Kingdom Governments (see Mr Layden's second statement at paragraph 90 above), which make clear that Adaleh will have access to the applicant for as long as he remains in detention.

Sixth, it is clear that the Adaleh Centre does not have the same expertise or resources as leading international NGOs such as Amnesty International, Human Rights Watch or the International Committee of the Red Cross. Nor does it have the same reputation or status in Jordan as, for example, the Jordanian NCHR. However, in its determination SIAC recognised this weakness. It recognised the Centre's ‘relative inexperience and scale’ but concluded that it was the very fact of monitoring visits which was important (see paragraph 31 above). The Court agrees with this conclusion. Moreover, the Court is persuaded that the capability of the Centre has significantly increased since SIAC's determination, even if it still has no direct experience of monitoring. Mr Layden's statements show that it has been generously funded by the United Kingdom Government, which in itself provides a measure of independence for the Centre, at least from the Jordanian Government. Given the United Kingdom Government's broader interest in ensuring that the assurances are respected, it can be expected that this funding will continue. Nothing would appear to turn on any change which may have taken place in the Centre's legal status, nor on the fact that several other organisations may have been approached as possible monitoring bodies before it. Although credence must be attached to Mr Wilke's account that the head of the Centre, Mr Rababa, appeared to know little of the applicant's legal proceedings in the United Kingdom, it must now be clear to Mr Rababa, from the meetings he has had with United Kingdom Government Ministers, what the role of the Centre is in monitoring, as well as the importance of the issue to the United Kingdom Government. Similarly, although Mr Rababa may well have family ties the security services, as alleged by Ms Refahi in her second statement (see paragraph 92 above), there is no evidence that anyone close to him will be responsible for the applicant's detention. More importantly, the scrutiny the Centre can expect from Jordanian and international civil society as to how it carries out the monitoring must outweigh any remote risk of bias that might arise from Mr Rababa's family ties.

Although the precise nature of the relationship between the Centre and its subsidiary, the National Team to Combat Torture, is unclear, it would appear that the NTCT is fully staffed and has the necessary interdisciplinary expertise to draw on for monitoring (see Mr Layden's first statement at paragraph 87 above). The Court would expect that, whatever allegations have been made as to the composition of the NTCT, the applicant would be visited by a delegation which included medical and psychiatric personnel who were capable of detecting physical or psychological signs of ill-treatment (see paragraph 4(d) of the terms of reference for the Centre, quoted at paragraph 81 above). There is every reason to expect that the delegation would be given private access to the applicant (paragraph 4(c) of the terms of reference, ibid.). It would clearly be in the applicant's interest to meet the delegation according to the pre-arranged timetable and thus the Court considers it is implausible that the GID, in order to escape monitoring, would tell the delegation that the applicant did not wish to see them. In the event that the delegation were to receive such a response, the Court considers that this would be precisely the kind of situation that would result in the ‘rapidly escalating diplomatic and Ministerial contacts and reactions’ foreseen by Mr Oakden in his evidence to SIAC (see paragraph 30 above). For these reasons, the Court is satisfied that, despite its limitations, the Adaleh Centre would be capable of verifying that the assurances were respected.

For the foregoing reasons the Court concludes that, on the basis of the evidence before it, the applicant's return to Jordan would not expose him to a real risk of ill-treatment.

Finally, in the course of the written proceedings, a question was put to the parties as to whether the applicant was at risk of a sentence of life imprisonment without parole and, if so, whether this would be compatible with Article 3 of the Convention. The parties agreed there was no such risk as life sentences in Jordan ordinarily last twenty years. The applicant also accepted that the length of his sentence could be examined in the context of his Article 6 complaint. The Court agrees with the parties and considers that, in the applicant's case, no issue would arise under Article 3 in respect of the length of any sentence which may be imposed on him in Jordan.

Accordingly, the Court finds that the applicant's deportation to Jordan would not be in violation of Article 3 of the Convention.

The Government adopted the reasoning of the House of Lords in the present case (see paragraphs 54–56 above). They submitted that the Court's established case-law made clear that an effective remedy under Article 13 was not required to satisfy all the requirement of Article 6. All that was required by Article 13 was independent and impartial scrutiny of an applicant's Article 3 claim. This in turn required that an independent appeal body be informed of the reasons for deportation; there had to be a form of adversarial proceedings, if necessary through a special representative with security clearance; and that the body be competent to reject the executive's assertions where it finds them arbitrary or unreasonable (Al-Nashif v. Bulgaria, no. 50963/99, §§ 133–137, 20 June 2002; C.G. and Others v. Bulgaria, no. 1365/07, §§ 57 and 62, 24 April 2008).

SIAC procedures clearly satisfied these requirements. As the Court had held in A and Others v. the United Kingdom, cited above, § 219, it was a fully independent court, which could examine all the relevant evidence, both closed and open. This is especially so, given the Secretary of State's obligation to disclose evidence which helps an appellant and the fact that the closed sessions enabled SIAC to see more evidence than would otherwise be the case. Proceedings before SIAC were adversarial, involving the applicant's own representatives and, in closed sessions, the special advocates. SIAC's jurisdiction was not limited to reviewing the executive's decision on grounds of arbitrariness or unreasonableness: it conducted a full merits review and had allowed appeals against deportation, for instance in DD and AS (see paragraph 74 above). In the applicant's case, SIAC had stated in its open judgment that the closed evidence played a limited and confirmatory role in its decision.

The applicant observed that, after Chahal, cited above, SIAC and the system of special advocates had been designed to allow the Secretary of State to present her case as to why a particular returnee was a risk to national security, not to allow secret evidence on safety on return. A ministerial assurance to that effect had been given to Parliament when it passed the 1997 Act (Hansard, HC Deb 26 November 1997 vol 301, at 1040).

The Court had never regarded it as permissible, either in Chahal or subsequently, for the quality of assurances to be tested on the basis of evidence heard in secret. Moreover, the Court had emphasised in Saadi, cited above, § 127) that the examination of the existence of a real risk ‘must necessarily be a rigorous one’. The applicant submitted that even greater rigour was required in a case involving assurances when the respondent State accepted that, without those assurances, there would be real risk of ill-treatment. For that reason, he submitted that there ought to be an enhanced requirement for transparency and procedural fairness where assurances were being relied upon because, in such a case, the burden fell on the respondent State to dispel any doubts about a serious risk of ill-treatment on return. As a matter of principle, therefore, a respondent State should never be allowed to rely on confidential material on safety of return. Not only was it unfair to do so, it ran the unacceptable risk of not arriving at the correct result. This was not a theoretical issue in his case: it was clear that closed evidence had been critical in his case. For instance, it was clear that evidence had been heard in closed session about the United States and its interest in interviewing him. It was also clear that closed evidence had been relied on to support SIAC's finding that the GID leadership were committed to respecting the assurances. Finally, he submitted that the special advocate system could not mitigate the difficulties faced in challenging Foreign and Commonwealth Office witnesses as to the negotiation of the MOU.

The third parties (see paragraph 5 above) submitted that Lord Phillips had erred in his reasons for holding that there would be no unfairness in SIAC hearing closed evidence on safety on return. It was true a returnee would typically have knowledge of some of the facts relevant to safety on return, but it did not follow that he would not be seriously disadvantaged by not knowing the Government's case. Procedural fairness required that the applicant be given sufficient detail of the Government's case to enable him to give effective instructions to his special advocate. It was also a mistake to suppose that the returnee would having nothing to say in reply to information that the receiving Government might have communicated confidentially to the United Kingdom Government; one could never know what difference disclosure to the applicant could make. The safeguard of the special advocate was not sufficient; the Grand Chamber in A and Others v. the United Kingdom, cited above, had recognised the difficulties special advocates had in defending the returnees interests in closed sessions of SIAC.

The Government did not accept that Article 5 could be relied in an expulsion case (the Court had doubted that it could be in Tomic v. the United Kingdom (dec.), 17837/03, 14 October 2003). Even if it could, no issue arose in the present case because the applicant would not be detained for a lengthy period before being brought before a court. SIAC had found that it was likely he would be brought before a ‘judicial authority’ within 48 hours, even if this were only a prosecutor with judicial status. The report of Mr Al-Khalili and Mr Najdawi confirmed that the Public Prosecutor was a judicial officer; they had also reported that the 48 hour period in which the police had to notify the legal authorities of any arrest had been reduced to 24 hours (see paragraphs 95 and 96 above). SIAC had also found that extensions of detention up to fifty days were unlikely to be sought (see paragraph 41above). Both of SIAC's findings had been upheld by the Court of Appeal and the House of Lords. In the House of Lords, Lord Phillips had also found that 50 days' detention fell far short of a flagrant breach of Article 5 (see paragraph 58 above) and, although they did not accept that detention for fifty days was likely, the Government relied upon his conclusion.

The Government also stated that the assurance in the MOU that the applicant would be brought promptly before a judge applied not only to any detention prior to re-trial for the offences for which he had been convicted in absentia but to any other period of detention in Jordan. Finally, since they did not accept that the applicant's retrial would be a flagrant denial of justice, the Government considered that no issue arose under Article 5 in respect of any sentence of imprisonment that might imposed upon the applicant.

The applicant submitted that the evidence showed Islamist prisoners were routinely detained incommunicado for up to fifty days, at the order of the Public Prosecutor. Such a period far exceeded the time limits which had been set by the Court (Brogan and Others v. the United Kingdom, 29 November 1988, §§ 61–62, Series A no. 145-B; Öcalan, cited above, § 103) and which were acceptable in international law (see paragraph 155 above). It was also contrary to this Court's case-law and international law for a public prosecutor who had conduct of the investigation to be responsible for determining the legality of continued detention. This was even more so when the Public Prosecutor in Jordanian State Security cases was a military officer. Furthermore, as the MOU did not define what ‘promptly before a judge’ meant, the applicant considered that the only basis for SIAC's finding that he would be brought before a judicial authority within 48 hours was the evidence of the Foreign and Commonwealth Office witness originally responsible for the MOU, Mr Oakden. However, it was now apparent from the report of Mr Al-Khalili and Mr Najdawi that this evidence was based solely on the understanding that the applicant would be brought before the Public Prosecutor.

The Court accepts that, in Tomic, cited above, it doubted whether Article 5 could be relied on in an expulsion case. However, it also recalls that in Babar Ahmad and Others, §§ 100–116, cited above, the applicants complained that if they were extradited to the United States of America and either designated as enemy combatants or subjected to rendition then there would be a real of risk of violations of Articles 3, 5 and 6 of the Convention. The United States Government had given assurances that the applicants would not be so designated and would be tried before federal courts. Before both the domestic courts and this Court, the applicants' complaints were examined on the premise that they met the criteria for designation as enemy combatants and that, if such a designation were made, there would be a real risk of a violation of Articles 3, 5 and 6 of the Convention. Ultimately, the complaints were rejected as manifestly ill-founded because the assurances given by the United States were sufficient to remove any real risk of designation or rendition. Equally, the Court recalls that, while examining the applicant's Article 6 complaint in Al-Moayad, cited above, § 101, it found that:

Given that this observation was made in the context of the applicant's complaint that he would be detained without trial at Guantánamo Bay, the Court finds that these observations must apply with even greater force to Article 5 of the Convention.

The Court also considers that it would be illogical if an applicant who faced imprisonment in a receiving State after a flagrantly unfair trial could rely on Article 6 to prevent his expulsion to that State but an applicant who faced imprisonment without any trial whatsoever could not rely on Article 5 to prevent his expulsion. Equally, there may well be a situation where an applicant has already been convicted in the receiving State after a flagrantly unfair trial and is to be extradited to that State to serve a sentence of imprisonment. If there were no possibility of those criminal proceedings being reopened on his return, he could not rely on Article 6 because he would not be at risk of a further flagrant denial of justice. It would be unreasonable if that applicant could not then rely on Article 5 to prevent his extradition (see, mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, §§ 51–56, 24 March 2005; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 461–464, ECHR 2004-VII).

The Court therefore considers that, despite the doubts it expressed in Tomic, it is possible for Article 5 to apply in an expulsion case. Hence, the Court considers that a Contracting State would be in violation of Article 5 if it removed an applicant to a State where he or she was at real risk of a flagrant breach of that Article. However, as with Article 6, a high threshold must apply. A flagrant breach of Article 5 would occur only if, for example, the receiving State arbitrarily detained an applicant for many years without any intention of bringing him or her to trial. A flagrant breach of Article 5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving State, having previously been convicted after a flagrantly unfair trial.

The Court finds that the applicant's second and third complaints under this Article (lack of legal assistance and possible detention after a flagrantly unfair trial) are more appropriately examined under Article 6. Consequently, it is only necessary for it to examine his first complaint (the possibility of incommunicado detention for up to fifty days) under Article 5.

Applying the principles it has set out in paragraph 233 above, the Court finds that there would be no real risk of a flagrant breach of Article 5 in respect of the applicant's pre-trial detention in Jordan. The Court has serious doubts as to whether a Public Prosecutor, a GID officer who is directly responsible for the prosecution, and whose offices are in the GID's building, could properly be considered to be ‘judge or other officer authorised by law to exercise judicial power’ (see, for instance, Medvedyev and Others v. France [GC], no. 3394/03, § 124, ECHR 2010-…; and Kulomin v. Hungary cited at paragraph 155 above). Accordingly, little weight can be attached to the fact that, pursuant to the amendments to the Jordanian Code of Criminal Procedure, the applicant would be brought before the Public Prosecutor within twenty-four hours (see Mr Al-Khalila and Mr Najdawi's report at paragraph 96 above). However, Jordan clearly intends to bring the applicant to trial and must do so within fifty days' of his being detained. The Court agrees with Lord Phillips that fifty days' detention falls far short of the length of detention required for a flagrant breach of Article 5 and, consequently, there would be no violation of this Article if the applicant were deported to Jordan.

The Government submitted that the Court should adopt the House of Lords' approach and find that Article 6 would only be engaged in the extraterritorial context when an unfair trial in the receiving State would have serious consequences for the applicant. They accepted, however, that in the present case there would be serious consequences for the applicant if convicted and therefore accepted that the ‘flagrant denial of justice’ test applied.

The Government further submitted that ‘flagrant denial’ had to be interpreted to mean a breach ‘so fundamental to amount to a nullification, or destruction of the very essence, of the right guaranteed’ (see the dissenting opinion in Mamatkulov and Askarov, cited above). In the Government's submission, this was a stringent test, which would only be satisfied in very exceptional cases. Moreover, substantial reasons were required for showing that a flagrant denial of justice would occur.

The Government adopted the reasoning of SIAC and the House of Lords that the flagrant denial of justice test had not been met in the present case. They accepted that there was a lack of structural independence in the State Security Court but that was remedied by appeal to the Court of Cassation. There was nothing in principle or in the Court's case-law that a court's lack of structural independence automatically meant there would a flagrant denial of justice; an assessment was always needed of the extent of any unfairness and that could only be done on a wider basis than looking simply at a lack of structural independence. Accordingly, little weight should be attached to international criticism of the State Security Court or international materials on the trial of civilians by military courts.

The same was true for a lack of legal assistance pre-trial: Article 6 conferred no absolute right to have such assistance. It was clear from the findings of SIAC that the Jordanian authorities proceed with caution in the applicant's case and would be acutely aware that the applicant's retrial would be closely monitored. For instance, the Jordanian courts were unlikely to rely on anything the applicant had said during GID questioning that was not repeated before the Public Prosecutor; Jordanian law only permitted the absence of a lawyer before the Public Prosecutor for good reason (see the report of Mr Al-Khalila and Mr Najdawi at paragraph 97 above).

The Government accepted that the admission of evidence obtained by torture of the defendant would render that defendant's trial unfair. However, the same proposition did not apply to evidence obtained by ill-treatment that did not amount to torture: even in a ‘domestic’ context a distinction had been drawn by the Court between unfairness as a result of evidence obtained by torture and evidence obtained by other forms of ill-treatment. When ill-treatment did not reach the threshold of torture, there was a discretion as to whether the evidence obtained by that ill-treatment could be used at trial (Jalloh v. Germany [GC], no. 54810/00, §§ 99, 106-107, ECHR 2006-IX). Moreover, in distinguishing between torture and other forms of ill-treatment, the Court applied the high standard set out in Article 1 of UNCAT (see paragraph 125 above). In the present case, SIAC had not found that the evidence against the applicant had been obtained by torture, but only that there was a real risk that it had been obtained by ill-treatment contrary to Article 3. Accordingly, there was no basis for concluding that the use of that evidence would automatically be a flagrant denial of justice.

The Government also submitted that a high standard of proof should apply when, in the extra-territorial context, the applicant alleged that evidence obtained by torture or ill-treatment would be used at a trial in the receiving State. The Government observed that the United Kingdom courts would admit evidence where there is a real risk that it has been obtained by torture, provided that it was not established on the balance of probabilities that it has been so obtained (the House of Lords' judgment in A and others (no. 2) see paragraphs 136 and 137 above). Given, therefore, that the evidence in the present case could be lawfully and fairly admitted in the United Kingdom, it would be illogical that deportation from the United Kingdom could be prevented on those grounds. The Government therefore submitted a real risk that the evidence had been obtained by torture or other ill-treatment did not suffice. Instead, a flagrant denial of justice could not arise unless it was established on a balance of probabilities or beyond reasonable doubt that evidence had been obtained by torture. This standard of proof was consistent with the standard applied by the Court in ‘domestic’ Article 3 and Article 6 cases; with Article 15 of UNCAT; and with re: El Motassadeq, the judgment of the Düsseldorf Court of Appeal, Singh, and Mahjoub(see, respectively, paragraphs 129, 133, 135, 139 and 140, and 153 above) The applicant had not so established in his case: the further evidence he relied on added nothing to the evidence which had been before SIAC and was, in any event, contradicted by Mr Al-Khalila and Mr Najdawi. Furthermore, Mamatkulov and Askarov, cited above, showed that general reports that torture evidence was routinely admitted in a receiving State was not sufficient to establish that a particular applicant would suffer a flagrant denial of justice. More direct evidence was required.

The Government considered that the applicant's argument that there was a duty to investigate allegations of torture was not relevant: Jordan was not a Convention Contracting State so there was no positive obligation on Jordan to investigate breaches of Article 3 of the Convention. Similarly, although it was difficult for a Jordanian defendant to show that a confession made to the Public Prosecutor was not voluntary (because the burden of proof was on him and not the Prosecutor), SIAC had found it was acceptable for Jordanian law to proceed this way. It had also found that a Jordanian court's decision which applied that burden of proof would not be manifestly unreasonable or arbitrary and thus no flagrant denial of justice would arise.

Finally, the Government submitted that no special test should apply to evidence obtained by torture or other ill-treatment of third parties than to any other factor which may render a trial unfair. Even if it did, when there was nothing more than a real risk that evidence had been obtained by ill-treatment, the admission of that evidence at trial would not amount to a complete nullification of the right to a fair trial.

The Government therefore submitted that these three factors (lack of independence, lack of legal assistance and risk of admission of torture evidence), even taken cumulatively, would not amount to a flagrant denial of justice.

Unlike the Government, the applicant did not regard the imposition of a long term of imprisonment as a prerequisite for a finding of a flagrant denial of justice, rather the risk of a long term of imprisonment was an aggravating feature of unfairness.

The applicant submitted that the flagrant denial of justice test is qualitative not quantitative. ‘Flagrant’ meant ‘nullifies the very essence of the right’ but did not require the right to be completely nullified. It also meant the unfairness had to be manifest and predictable.

The applicant submitted that a flagrant denial of justice would occur at his re-trial if the following factors were considered cumulatively:

In respect of the military composition of the State Security Court, the applicant relied first, on the Human Rights Committee's condemnation of the practice of trying civilians before military courts (see paragraphs 157–159 above). Second, he relied on specific international criticism of Jordan's State Security Court. This criticism centred on: the possibility of extended periods of incommunicado detention without judicial review (at the instance of the Public Prosecutor, a military officer); the State Security Court's failure to investigate properly allegations of torture; and the court's lack of independence and impartiality. The applicant also relied on the unfairness of Jordanian rules of evidence relating to confessions. Even on the evidence of Mr Al-Khalila and Mr Najdawi, it appeared that the Court of Cassation had taken the approach that, once a confession was repeated before the Public Prosecutor, it was for the defendant to prove that the Prosecutor was complicit in obtaining it involuntarily. If the defendant did not so prove, the confession was admissible regardless of any prior misconduct by the GID.

In this context, he submitted that the State Security Court in Jordan was even more open to question than the Turkish State Security Court considered in Ergin (no. 6), cited above. Both Al-Moayad, cited above and Drozd and Janousek v. France and Spain, 26 June 1992, Series A no. 240 suggested that trial by a military court would, in itself, amount to a flagrant breach of Article 6.

In respect of his complaint regarding the possible admission of evidence obtained by torture, the applicant relied on the further evidence he had obtained (summarised at paragraphs 102–105 above), which showed that:

The applicant maintained that Ms Refahi's evidence was correct: the use of a fingerprint on a statement was a clear sign of a false confession (see paragraph 104 above). A fingerprint was not simply, as Mr Al-Khalili and Mr Najdawi suggested, a sign that the maker of a statement was illiterate, least of all when, in Abu Hawsher's case, the case against him was that he had been reading the applicant's books.

The applicant also submitted that any possible distinction between torture and ill-treatment (either in international law or in the Convention) was immaterial for two reasons. First, his allegation was that Al-Hamasher and Abu Hamsher's ill-treatment was so severe as to amount to torture. Second, there was a breach of Article 6 whenever ill-treatment was inflicted in order to secure a confession and it was clear that Al-Hamasher and Abu Hamsher had been ill-treated for that reason.

The use of torture evidence was a flagrant denial of justice. The prohibition on the use of torture evidence was, in the applicant's submission, part of the established international machinery through which the ius cogens prohibition on torture was expressed. This prohibition was enshrined in Article 15 of UNCAT and the case-law of this Court. The exclusionary rule in Article 15 had to be read in conjunction with Article 12 of the UNCAT, which imposed a duty to investigate wherever there was reasonable ground to believe that an act of torture has been committed. It was clear from the reports of United Nations bodies and NGOs (summarised at paragraphs 106–124 above) that the Jordanian Public Prosecutor failed properly to investigate torture allegations and, indeed, had not done so when those allegations were made at the applicant's in absentia trials. Therefore, while he accepted he had not demonstrated on the balance of probabilities that evidence was obtained in his case by torture, he had demonstrated beyond a reasonable doubt that Jordan would not investigate the allegations which had been made in his case.

It was incorrect for the Government to suggest that Jordanian law was consistent with English law as to the standard of proof to be applied; the English law will not admit evidence in criminal proceedings until the prosecution can prove that the evidence was not obtained by torture (see Mushtaq at paragraph 138 above). Moreover, the view of the majority of House of Lords in A and others(no. 2) (see paragraph 136 and 137 above) was premised on the assumption that, in the United Kingdom, an independent court, SIAC, would conscientiously investigate any allegations that evidence had been obtained by torture. This assumption did not hold true for the Jordanian State Security Court. Before the State Security Court, the burden of proof fell on the defendant to prove a confession had been obtained by torture. This was unfair because it was not accompanied by some of the most basic protections against ill-treatment such as recording of questioning, limited periods of detention and access to lawyers or doctors.

Consequently, for these reasons, it was unfair to expect him to prove either beyond a reasonable doubt or on the balance of probabilities that the key witnesses in his case had been tortured.

In respect of the conclusions of the domestic courts, the applicant submitted that the Court of Appeal had taken the correct approach by looking at the applicant's case in the round and had correctly compared the real risk that the confessions had been obtained by torture against the ‘litany of lack of basic protections’ in Jordanian criminal procedure. By contrast, the House of Lords had erred by focusing only on the risk that the evidence had been obtained by torture and had not done justice to the combination of procedural defects that the applicant relied upon. The House of Lords was not correct to rely on Mamatkulov and Askarov, cited above. The Grand Chamber's assessment in that case was coloured by the Article 34 issue in the case, the material before it was not as specific and detailed as in his case, and there was not the same accumulation of factors as in his case.

The applicant has alleged that his retrial would amount to a flagrant denial of justice because of a number of factors, including the absence of a lawyer during interrogation, his notoriety and the composition of the State Security Court (see paragraph 248 above). However, as the Court has observed, the central issue in the case is the admission of torture evidence. Accordingly, it will first examine this complaint.