74
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.”
A. The parties’ submissions
1. The Government
227. The Government did not accept that Article 5 could be relied in an
expulsion case (the Court had doubted that it could be in Tomic v. the
United Kingdom (dec.), 17837/03, 14 October 2003). Even if it could, no
issue arose in the present case because the applicant would not be detained
for a lengthy period before being brought before a court. SIAC had found
that it was likely he would be brought before a “judicial authority” within
48 hours, even if this were only a prosecutor with judicial status. The report
of Mr Al-Khalili and Mr Najdawi confirmed that the Public Prosecutor was
a judicial officer; they had also reported that the 48 hour period in which the
police had to notify the legal authorities of any arrest had been reduced to
24 hours (see paragraphs 95 and 96 above). SIAC had also found that
extensions of detention up to fifty days were unlikely to be sought (see
paragraph 41 above). Both of SIAC’s findings had been upheld by the Court
of Appeal and the House of Lords. In the House of Lords, Lord Phillips had
also found that 50 days’ detention fell far short of a flagrant breach of
Article 5 (see paragraph 58 above) and, although they did not accept that
detention for fifty days was likely, the Government relied upon his
conclusion.
228. The Government also stated that the assurance in the MOU that the
applicant would be brought promptly before a judge applied not only to
any detention prior to re-trial for the offences for which he had been
convicted in absentia but to any other period of detention in Jordan. Finally,
since they did not accept that the applicant’s retrial would be a flagrant
denial of justice, the Government considered that no issue arose under
Article 5 in respect of any sentence of imprisonment that might imposed
upon the applicant.
2. The applicant
229. The applicant submitted that the evidence showed Islamist
prisoners were routinely detained incommunicado for up to fifty days, at the
order of the Public Prosecutor. Such a period far exceeded the time limits
which had been set by the Court (Brogan and Others v. the United
Kingdom, 29 November 1988, §§ 61-62, Series A no. 145-B; Öcalan, cited
above, § 103) and which were acceptable in international law (see paragraph
155 above). It was also contrary to this Court’s case-law and international
law for a public prosecutor who had conduct of the investigation to be
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