OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
91
applicants’ extradition, there may have been reasons for doubting that they
would receive a fair trial in Uzbekistan, there was not sufficient evidence to
show that any irregularities in the trial were liable to constitute a flagrant
denial of justice; the fact that Court had been prevented from obtaining
additional information to assist it in its assessment of whether there was
such a real risk by Turkey ‘s failure to comply with Rule 39 was seen by the
Court as a matter to be examined with respect to the complaint under Article
34 of the Convention.
285. In the present case, the situation is different. Extensive evidence
was presented by the parties in respect of the applicant’s re-trial in Jordan
and thoroughly examined by the domestic courts. Moreover, in the course of
the proceedings before this Court, the applicant has presented further
concrete and compelling evidence that his co-defendants were tortured into
providing the case against him. He has also shown that the Jordanian State
Security Court has proved itself to be incapable of properly investigating
allegations of torture and excluding torture evidence, as Article 15 of
UNCAT requires it to do. His is not the general and unspecific complaint
that was made in Mamatkulov and Askarov; instead, it is a sustained and
well-founded attack on a State Security Court system that will try him in
breach of one of the most fundamental norms of international criminal
justice, the prohibition on the use of evidence obtained by torture. In those
circumstances, and contrary to the applicants in Mamatkulov and Askarov,
the present applicant has met the burden of proof required to demonstrate a
real risk of a flagrant denial of justice if he were deported to Jordan.
b. The applicant’s remaining Article 6 complaints
286. The Court considers that the foregoing conclusion makes it
unnecessary (save as above) to examine the applicant’s complaints relating
to the absence of a lawyer in interrogation, the prejudicial consequences of
his notoriety, the composition of the State Security Court, and the
aggravating nature of the length of sentence he would face if convicted.
c. Overall conclusion on Article 6
287. The Court finds that the applicant’s deportation to Jordan would be
in violation of Article 6 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
288. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
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