OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
13
Appeal would lie to the Court of Cassation, a civilian court, though that
court could not hear argument on any unfairness of the trial arising from the
military composition of the State Security Court.
45. As to the potential use of evidence obtained by torture in the
applicant’s retrial, SIAC found as follows:
“418. The Jordanian legal system, by its terms, does not therefore permit the use of
involuntary confession or incriminatory statements. There is a judicial examination of
allegations of that nature before the evidence is admitted. Those allegations can
themselves be tested by evidence. How far those allegations can be practicably tested
is affected by certain features of the system. The burden of proof for excluding
confessions made to the Prosecutor lies on the defendant. There is obvious difficulty
in proving prior acts or threats by the GID in the absence of systems for recording
questioning, for ensuring the presence of lawyers during questioning, and independent
prompt medical examinations. There is likely to be considerable reluctance on the part
of the Court to accept that confessions to the Prosecutor, a common source of
evidence, are tainted by ill-treatment. The Court or Prosecutor does not appear
prepared to compel the appearance of GID officials to testify about these allegations.
There may be a sense that these allegations are made routinely, as a matter of defence
strategy.
419. There may well be a greater willingness to test the nature of confessions made
only in the course of GID questioning. There is some evidence that at least at Court of
Cassation level, confessions alleged to have been obtained by torture have been
excluded, (though it is not clear whether those were made to the GID or to the
Prosecutor).
420. However, the general background evidence and that specific to the two trials in
question shows that there is at least a very real risk that the incriminating statements
against the [applicant] were obtained as a result of treatment by the GID which
breached Article 3 ECHR; it may or may not have amounted to torture. It is very
improbable that those statements would be excluded on the retrial, because the SSCt is
unlikely to be persuaded that they were so obtained, particularly having already
rejected that assertion at the first trials, although the makers could give evidence that
they were so obtained and were in fact untrue.”
There was, therefore, a high probability that the past statements made to
the Public Prosecutor which incriminated the applicant would be admitted.
SIAC further found that those statements would be of considerable, perhaps
decisive, importance against him. On this aspect of the retrial, SIAC held:
“439. To us, the question comes back to whether or not it is unfair for the burden of
proof in Jordan to lie where it does on this issue; we do not think that to be unfair in
itself. However, this burden of proof appears to be unaccompanied by some of the
basic protections against prior ill-treatment or means of assisting its proof eg video or
other recording of questioning by the GID, limited periods of detention for
questioning, invariable presence of lawyers, routine medical examination, assistance
from the Court in calling relevant officials or doctors. The decisions are also made by
a court which lacks independence and does not appear to examine closely or
vigorously allegations of this nature. It is taking these points in combination which
leads us to conclude that the trial would be likely to be unfair within Article 6 because
of the way the allegations about involuntary statements would be considered.”
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