Court Watch
Nations, or the Court of Justice of the European Union, which adjudicates disputes under EU law. The ECtHR hears cases brought by and on behalf of any of 800 million individuals in the 47 mem- ber states of the Council of Europe.
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Qatada, 51, was born Omar Mahmoud Moham- med Othman, and has been called “Osama bin Laden’s right-hand man” and “Al Qaeda’s spiritual leader” in Europe. Qatada gained asylum in the United Kingdom in 1993. Following the Septem- ber 11, 2001 attacks in the United States, Qatada came under increasing surveillance by British authorities because audio recordings of his sermons had been found in the German apart- ment leased by 9/11 mastermind Mohamed Atta. Britain had determined to extradite Qatada to stand trial on terrorism charges in Jordan, but his counsel fought his deportation contending that his right to a fair trial would be severely curtailed in light of evidence gained through the torture of witnesses. In a Memorandum of Understand- ing (MOU) between the British and Jordanian governments, Jordan promised to exclude evidence which would otherwise be inadmissible in European courts, particularly those in England. Qatada has to date been charged with no crimes in the United Kingdom, but British authorities are satisfied that his right to a fair trial would be ensured in Jordan. After lengthy legal battles, the House of Lords determined in 2009 that, were he to be extradited, Qatada’s rights would be protected under the MOU.
The Decision
Following arguments by Qatada’s counsel, how- ever, the Court found that he would be denied the guarantees found in the Convention, spe- cifically Articles 3 (ill treatment) and 6 (flagrant denial of justice). Further, he would be denied the procedural guarantees of Article 5 and the effec- tive remedies guaranteed by Article 13. Amicus briefs filed by Amnesty International and Human Rights Watch, along with various United Nations organizations, dispute the diplomatic assurances
offered by the Kingdom of Jordan. The ECtHR ac- cepted that view, calling Jordanian human rights abuses widespread, routine, and disturbing. Jor- danian assurances against abuses were deemed insufficient because courts could not monitor interrogations; the monitors who can gain access to defendants are not independent of the state police; and the assurances were legally unen- forceable. Moreover, the ECtHR noted, the MOU did not carry the force of law in Jordan.
Aftermath
Ironically, the very guarantees despised by Al Qaeda are those prompting Qatada’s release, and the decision has prompted heavy fallout in Whitehall. Prime Minister David Cameron and Home Secretary Theresa May under heavy fire from the opposition, have decried the Court’s ruling, and are actively seeking further protec- tive diplomatic measures which would carry the force of law in Jordan. Cameron has been called “dangerously complacent” for not pursuing an appeal at the ECtHR.
Justice Minister Ken Clarke has been even more harshly criticized. On February 13, Qatada was released from confinement, which critics say “slavishly” follows ECtHR rulings. Qatada remains under a 22-hour daily curfew, without ac- cess to a telephone or the internet. His attorneys call such a release tantamount to house arrest without charge, and continue to pursue his full release.
Given the coming Olympic Games in London this summer, the British government hopes that ongoing consultation with Jordan’s King Abdul- lah can pave the way to Qatada’s deportation without disrespecting the spirit of the ECtHR’s decision. Should sufficient assurances fail to come, opposition sentiment may well force Britain to withdraw from the court’s jurisdiction, much as the United States has withdrawn from the International Court of Justice.
* Submitted by Aaron Lukken ILSA Quarterly » volume 20 » issue 4 » May 2012 .
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