64
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
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.
197. 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: (i) what was meant by “judge” in respect of the guarantee that he
would be “brought promptly before a judge”; (ii) whether he would have
access to a lawyer during the interrogation period of his detention; (iii)
whether rendition is prohibited; (iv) whether, as a matter of Jordanian law,
the assurances in the MOU were legal and enforceable; (v) Adaleh’s terms
of access to him; and (vi) its capacity to monitor the assurances. The Court
will consider each concern in turn.
198. 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 9th 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.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents