86
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
the present case (see paragraphs 269–271 below), it is not necessary to
decide this question.
2. The applicant’s case
268. The applicant has alleged that his retrial would amount to a flagrant
denial of justice because of a number of factors, including the absence of a
lawyer during interrogation, his notoriety and the composition of the State
Security Court (see paragraph 248 above). However, as the Court has
observed, the central issue in the case is the admission of torture evidence.
Accordingly, it will first examine this complaint.
a. Evidence obtained by torture
269. The incriminating statements against the applicant were made by
Al-Hamasher in the Reform and Challenge Trial and Abu Hawsher in the
millennium conspiracy trial (see paragraphs 9 –20 above). SIAC found that
there was at least a very real risk that these incriminating statements were
obtained as a result of treatment by the GID which breached Article 3; it
may or may not have amounted to torture (see paragraph 420 of its
determination, quoted at paragraph 45 above).
270. It is unclear from its determination why SIAC felt unable to reach a
clear conclusion as to whether the ill-treatment amounted to torture. The
precise allegation made by Abu Hawsher is that he was beaten on the soles
of his feet to the stage where the skin fell off every time he bathed (see
paragraph 103 above). The scarring on Al-Hamasher is consistent with the
same form of ill-treatment (see paragraph 102 above). The purposes of that
ill-treatment, if it occurred, could only have been to obtain information or
confessions from them. Moreover, beating on the soles of the feet, more
commonly known as bastinado, falanga or falaka, is a practice which has
been considered by the Court. Its infliction causes severe pain and suffering
to the victim and, when its purpose has been to punish or to obtain a
confession, the Court has had no hesitation in characterising it as torture
(see, among many authorities, Salman v. Turkey [GC], no. 21986/93, §§ 114
and 115, ECHR 2000-VII; Valeriu and Nicolae Roşca v. Moldova,
no. 41704/02, § 64, 20 October 2009 and further references therein; Diri
v. Turkey, no. 68351/01, §§ 42–46, 31 July 2007; Mammadov v. Azerbaijan,
no. 34445/04, §§ 68 and 69, 11 January 2007). Consequently, there is every
reason to conclude that, if Abu Hawsher and Al-Hamasher were ill-treated
in the way they allege, their ill-treatment amounted to torture.
271. This conclusion means the remaining two issues which the Court
must consider are: (i) whether a real risk of the admission of torture
evidence is sufficient; and (ii) if so, whether a flagrant denial of justice
would arise in this case.
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