the kind referred to in section 21(1) (a) or (b) of the Anti-terrorism,
Crime and Security Act 2001. The same rule must be followed in any
other judicial process where information of this kind would otherwise be
admissible.
122. Support for this approach is to be found in a decision in the case
of El Motassadeq of the Hanseatisches Oberlandesgericht (the Hanseatic
Court of Appeals, Criminal Division), Hamburg of 14 June 2005, NJW
2005, 2326. El Motassadeq had been charged with conspiracy to cause
the attacks of 11 September 2001 on the United States of America and
with membership of an illegal organisation. The court had been
provided by the US Department of Justice with summaries of statements
of three witnesses which, subject to certain safeguards, were admissible
under its Code of Criminal Procedure as equivalent to written records of
statements by these witnesses. The court was, of course, aware from
press articles and other reports that there were indications that suspected
Al Qaeda members had been subjected to torture within the meaning of
article 1 of the Convention, and it was contended that these statements
should be excluded under article 15. Repeated requests to the competent
US authorities for information about the circumstances of the
examination of these witnesses met with no response, and attempts to
obtain this information through the German authorities were blocked on
the ground that the information had been given to them for intelligence
purposes only and that a breach of the limitations of use would
jeopardise the security interests of the Federal Republic of Germany. In
this situation the court had no option but to base its assessment of the
question whether torture had been used on available, publicly accessible
sources. On the one hand the White House denied that it used or
condoned torture. On the other hand it had admitted that it did not view
Al Qaeda prisoners as coming under the protection of international
human rights agreements on the treatment of prisoners of war. This was
enough to raise the suspicion that torture had been used. There was a
question to answer on this point.
123. The court’s conclusions are to be found in the following
paragraphs of the certified translation:
“On the whole, the Division does not consider the use of
torture within the meaning of Art. 1 of the UN AntiTorture Convention at the examinations of Binalshibh,
Sheikh Mohammend and Ould Slahi as proved according
to Art. 15 of this Convention. The fact is not ignored here
that it is state agents of the United States, a country
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