Last Tuesday, the European Court of Human Rights held in El Haski v. Belgium, no. 649/08, Judgment of 25 September 2012, that Belgium should have excluded evidence where there was a real risk that the evidence had been obtained through torture or inhuman or degrading treatment. ECtHR, El Haski v. Belgium, no. 649/08, Judgment of 25 September 2012 (available in French only). The Court held that the admission of the testimony of witnesses who were likely tortured or subjected to inhuman treatment violated El Haski’s right to a fair trial under Article 6 of the European Convention on Human Rights. In accordance with Articles 43 and 44 of the Convention, the Chamber Judgment is not final. During the three month period following delivery of the opinion, either party may apply to the Grand Chamber to have the case reheard. [ECtHR Press Release]
The case concerned Lahoucine El Haski, a Moroccan national residing in Belgium who was charged with participating in terrorist activities as an alleged member of the Moroccan Islamic Combatant Group (GICM). El Haski was convicted and sentenced to seven years’ imprisonment on the basis of testimony of witnesses interrogated in third countries including France, Spain, and Morocco as well as evidence acquired through Belgian surveillance of El Haski and his home. El Haski claimed that his Article 6 right to a fair trial was violated by the admission of the witnesses’ testimony, while his Article 8 right to respect for private life was violated by the surveillance methods employed by Belgian authorities. El Haski v. Belgium. The Government of the United Kingdom, the European Center for Constitutional Rights, and Redress Trust were granted permission to intervene in the case. Id.
Violation of Article 6
The witnesses against El Haski had been arrested and interrogated based on their suspected involvement in the 2003 Casablanca bombings that resulted in the deaths of nearly fifty people. El Haski argued that the testimony of these witnesses was obtained through torture or cruel, inhuman, degrading treatment or punishment and that its admission therefore violated his right to a fair trial.
The Court held that the admission of evidence obtained in violation of Article 3 of the Convention, which prohibits the use of torture or other cruel, inhuman or degrading treatment or punishment, constitutes a violation of a defendant’s right to a fair trial. Id. The Court relied largely on its holding in Othman (Abu Qatada) v. United Kingdom [GC], no. 8139/09, in which the Court held that deportation to Jordan where there was a real risk that evidence that evidence obtained through torture would be admitted against Othman at his retrial, which would violate Article 6 of the Convention. In Othman, the Court stressed the importance of excluding evidence obtained through torture, stating:
Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.
ECtHR, Othman (Abu Qatada) v. United Kingdom [GC], no. 8139/09, ECHR 2012, Judgment of 17 January 2012.
Applying the test it developed in Othman, the Court found it sufficient that an applicant show there was a “real risk” that the evidence used against him at trial had been obtained through torture or other cruel, inhuman or degrading treatment or punishment. El Haski v. Belgium. The Court reached this conclusion after reviewing reports on the use of torture in Moroccan detention centers published by The U.N. Committee Against Torture, the U.N. Human Rights Council and NGOs including Amnesty International, Human Rights Watch, and the International Federation for Human Rights. The Court found that during the period in which the interrogations in question were conducted, the use of torture in detention centers in Morocco was widespread – particularly when the detainees were suspected terrorists – and the State lacked independent procedures to adequately investigate allegations of torture. Id. In light of this finding, the Court held that it would be unfair to require El Haski to prove beyond a reasonable doubt that the evidence against him had been obtained through torture, as Belgium had argued. Instead, as in Othman, it was sufficient for El Haski to show that there was a real risk the evidence had been obtained in violation of Article 3.
The Court relied on the same UN and NGO reports to find that El Haski had met this standard. Writing for Strasbourg Observers, Stijn Smet noted that the Court appeared to be going somewhat further than it had in Othman. In Othman, the applicant had put forth specific evidence showing that the witnesses against him had each been tortured. By contrast, the Court in El Haski found that there was a real risk the evidence had been obtained through torture based on more general information about detention conditions in Morocco. [Strasbourg Observers]
Finding a violation of Article 6, the Court ordered that El Haski be paid 5000 Euro in compensation. El Haski v. Belgium. Under Belgian law, El Haski is entitled to apply for a re-opening of his criminal proceedings where a “violation of the Convention is the consequence of shortcomings in the procedure of such gravity as to cast serious doubt on its outcome.” [Strasbourg Observers]
No violation of Article 8
The Court held that El Haski’s claim that his right to respect for his private life was manifestly unfounded. El Haski v. Belgium. The Court held that the investigation conducted against El Haski, which included surveillance of his home as well as repeated questioning and following El Haski, was justified under Belgium’s law of November 30, 1998. Reviewing the law, the Court found that it provided sufficient guidance on when surveillance methods could be used against suspects so as to prevent unlawful interference with individual privacy. Id.
The Court’s decision has been met with some criticism, namely from those who believe the Court “exceeds its competencies” and is too lenient on suspected terrorists and other controversial applicants. [Strasbourg Observers] Others have welcomed the Court’s judgment as a deterrent to torture and important safeguard for criminal defendants’ due process rights.