OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
75
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.
B. Admissibility
230. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.
C. Merits
1. Does Article 5 apply in an expulsion case?
231. 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:
“A flagrant denial of a fair trial, and thereby a denial of justice, undoubtedly occurs
where a person is detained because of suspicions that he has been planning or has
committed a criminal offence without having any access to an independent and
impartial tribunal to have the legality of his or her detention reviewed and, if the
suspicions do not prove to be well-founded, to obtain release (references omitted).”
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