First Article 3.
In the Abu Qatada case the European Court of Human Rights has ruled that he is not likely to be tortured or ‘ill-treated’ in Jordan if he is returned there to face the authorities.
Now this is, ultimately, a question of judgment for the court, based on an assessment of probability on the current facts. It could theoretically arise in a case involving Sweden or Norway just as much as it does in relation to Jordan or (for that matter) Libya or Egypt. It doesn’t come up because it never even occurs to anyone that such ill-treatment might occur. The thought, though, is uppermost when these other places are the likely recipients of expelled European residents.
Memoranda of Understanding are just devices for rebutting the inference of likely ill-treatment that is made simply on the basis of the record of countries like these. It is neither logical nor fair to rule them out as evidence simply because their having been volunteered proves irretrievable bad faith.
The weight to give them is quite another matter.
The Strasbourg court has rejected such memoranda in the past. In Abu Qatada, the court accepted that the facts before it (including of course – and I agree critically – the memoranda agreed by the British and the Jordanians as to how the applicant would be treated) did not give rise to the ‘real risk’ of ill-treatment necessary for their jurisdiction to prohibit the removal to kick in. As the Court says ‘its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment’.
Commentators critical of this ruling have to accept that what they are doing is questioning a judgment of the court on the facts. If the Government were to do this, no doubt the human rights activists would be furious.
Now Article 6.
This ruling is a very strong one and worth defending if this case goes further up the Strasbourg hierarchy, as it may well do.
The Court found that Abu Qatada has successfully ‘discharged the burden that could be fairly imposed on him of establishing the evidence against him [in Jordan] was obtained by torture’ and that he has also therefore shown that there would be ‘a real risk of a flagrant denial of justice if he were deported to Jordan.’ This strikes me as a strong finding and a reflection of how torture (of anyone) should never be allowed to pay.
How can this Article 6 ruling be gratefully received by commentators (based as it is on a finding of a set of facts) while the court’s other ruling on Article 3 (equally based on a finding of facts) is rejected?
Are the critics allowing their feelings to run away with them, turning the Strasbourg court into an à la carte menu from which only the bits agreeable to their previously identified positions are to be selected?
Does such partisanship do the advocacy of human rights any favours?