26
HASSAN v. THE UNITED KINGDOM – JUDGMENT
for Tarek Hassan’s death in circumstances where the evidence provided a
satisfying and convincing explanation of his arrest, detention and release.
46. The Government denied the allegation that Tarek Hassan was
detained as a means of putting pressure on the applicant to surrender. They
contended that the evidence submitted by the applicant in support of this
claim was imprecise and hearsay and that such a purpose on the part of the
United Kingdom authorities would have been inconsistent with Tarek
Hassan’s subsequent release from Camp Bucca as soon as his status had
been established as a civilian who did not pose a threat to security. Instead,
they contended that it was reasonable for the British forces to suspect Tarek
Hassan of being a combatant, since he was found, armed, on the roof of the
house of a general of the Al-Quds Army, which house contained other
firearms and a number of documents of intelligence value relating to local
members of the Ba’ath Party (see paragraph 11 above). The Government
further pointed out that, apart from the applicant’s witness statement, there
was no independent evidence of the cause of death because this information
had not been entered on the death certificate (see paragraph 29 above). In
any event, they emphasised that Samara was some 700 kilometres from
Camp Bucca, in an area that had never been occupied by British forces, and
that the AK-47 machine gun was not a weapon used by British forces.
B. The Court’s evaluation of the facts
47. At the outset, the Court recalls that the domestic proceedings were
dismissed on the ground that the applicant’s brother did not fall within the
jurisdiction of the United Kingdom at any material time (see paragraph 31
above). It was not therefore necessary for the national courts to establish the
facts in any detail. The Court is generally sensitive to the subsidiary nature
of its role and cautious in taking on the role of a first-instance tribunal of
fact (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).
However, in the present circumstances it is unavoidable that it must make
some findings of fact of its own on the basis of the evidence before it.
48. In cases in which there are conflicting accounts of events, the Court
is inevitably confronted when establishing the facts with the same
difficulties as those faced by any first-instance court. It reiterates that, in
assessing evidence, it has adopted the standard of proof “beyond reasonable
doubt”. However, it has never been its purpose to borrow the approach of
the national legal systems that use that standard. Its role is not to rule on
criminal guilt or civil liability but on Contracting States’ responsibility
under the Convention. The specificity of its task under Article 19 of the
Convention – to ensure the observance by the Contracting States of their
engagement to secure the fundamental rights enshrined in the Convention –
conditions the Court’s approach to the issues of evidence and proof. In the
proceedings before it, there are no procedural barriers to the admissibility of
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