OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
79
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.
243. 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.
244. 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.
245. 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.
2. The applicant
246. 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.
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