CASE OF OTHMAN (ABU QATADA) v. THE UNITED KINGDOM

No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Jordan);No violation of Article 3+13 - Prohibition of torture (Article 3 - Expulsion) (Article 13 - Effective remedy;Right to an effective remedy);No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty) (Conditional) (Jordan);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Expulsion;Article 6-1 - Access to court;Fair hearing) (Conditional) (Jordan)

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano

The applicant was born in DATE near GPE , then administered as part of GPE . He arrived in GPE in DATE , having previously fled GPE and gone to GPE . He made a successful application for asylum , the basis of which was first , that he had been detained and tortured in DATE and DATE by the NORP authorities and second , that he had been detained and later placed under house arrest on CARDINAL further occasions . The applicant was recognised as a refugee on DATE and granted leave to remain until DATE . As is the normal practice , the Secretary of ORG did not give reasons for his decision for recognising the applicant as a refugee .

On DATE the applicant applied for indefinite leave to remain in GPE . This application had not been determined before the applicant ’s arrest on DATE . On DATE he was taken into detention under the Anti - terrorism , Crime and Security Act DATE ( see A. and Others v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § DATE , CARDINAL DATE ) . When that Act was repealed in DATE , the applicant was released on bail and then made subject to a control order under LAW DATE ( ibid . , § § CARDINAL and CARDINAL ) . On DATE , while his appeal against that control order was still pending , the Secretary of ORG served the applicant with a notice of intention to deport ( see section CARDINAL , paragraph CARDINAL below ) .

NORP In DATE , the applicant was convicted in absentia in GPE of conspiracy to cause explosions , in a trial known as the “ reform and challenge ” case . He was the twelfth of CARDINAL defendants .

The case involved an allegation of a conspiracy to carry out bombings in GPE , which resulted in successful attacks on ORG and ORG in GPE in DATE . There were further convictions for offences of membership of a terrorist group , but these matters were the subject of a general amnesty . The applicant was sentenced to life imprisonment with hard labour at the conclusion of the trial .

During the trial , CARDINAL witness , PERSON , confessed that he and not the defendants had been involved in the bombings . ORG hearing the case took the view that his confession was false , and demonstrably so , because of discrepancies between what he said about the nature of the explosives , for example , and other technical evidence . Mr PERSON was later executed for homicides for which he had been convicted in another trial .

NORP The applicant maintains that the evidence against him was predominantly based upon an incriminating statement from a co - defendant , PERSON ( also known as PERSON ) . In his confession to ORG Prosecutor , Mr PERSON alleged that the applicant had provided prior encouragement for the attacks . He was also said to have congratulated the group after the attacks .

Mr PERSON , along with several other defendants , had complained during the proceedings before ORG that they had been tortured by ORG ( “ the ORG ” ) , which shares responsibility for maintaining internal security and monitoring security threats in GPE with ORG and the military . At DATE of interrogation during which they claimed to have been tortured , ORG took a statement from each defendant .

At the trial there was evidence from lawyers and medical examiners and relatives of the defendants that there were visible signs of torture on the defendants . However , ORG concluded that the defendants could not prove torture .

There were a number of appeals to ORG and remittals back to ORG , although , as the applicant had been convicted in absentia , no appeals were taken on his behalf . In the course of those appeals , the convictions were upheld on the basis that the relevant statements had been made to ORG . The confessions in those statements thus constituted sufficient evidence for conviction if the court accepted them and if ORG was satisfied with the confessions . ORG rejected the claim that ORG had to prove that the defendants had confessed to him of their own accord : ORG obligation to prove that a confession was obtained willingly only arose where the confession had not been obtained by him . The confessions in question were authentic and there was no evidence that they had been made under financial or moral coercion .

ORG then considered the impact of the allegations that the confessions to ORG had resulted from coercion of the defendants and their families while they were in ORG detention . Such conduct during an investigation was against NORP law and rendered the perpetrators liable to punishment . However , even assuming that the GPE allegations were true , that would not nullify the confessions made to ORG unless it were proved that those confessions were the consequence of illegal coercion to force the defendants to confess to things which they had not done . The defendants had not shown that was the case .

As a result of the applicant ’s conviction in this trial , the NORP authorities requested the applicant ’s extradition from GPE . In DATE , the request was withdrawn by GPE .

In DATE the applicant was again tried in absentia in GPE , this time in a case known as the “ millennium conspiracy ” , which concerned a conspiracy to cause explosions at western and NORP targets in GPE to coincide with the DATE celebrations . The conspiracy was uncovered before the attacks could be carried out . The applicant was alleged to have provided money for a computer and encouragement through his writings , which had been found at the house of a co - defendant , Mr PERSON . The applicant maintains that the main evidence against him was the testimony of PERSON .

Most of the defendants were convicted on most charges ; some were fully or partly acquitted . The applicant was convicted and sentenced to CARDINAL years’ imprisonment with hard labour . Other defendants , including GPE PERSON , were sentenced to death . On appeal certain of the defendants , including , it appears , PERSON , claimed to have been tortured during DATE of interrogation when they were denied access to lawyers . ORG rejected this ground of appeal , holding that the TIME of interrogation showed that each defendant had been told of his right to remain silent about the charges unless their lawyer was present . The applicant also states that ORG found that the alleged ill - treatment in ORG custody was irrelevant because ORG did not rely on the GPE confessions to the ORG but their confessions to ORG . PERSON remains under sentence of death .

The findings of GPE ( ORG ) in respect of the evidence presented at each trial are set out at paragraph CARDINAL below . The further evidence which has become available since ORG ’s findings , and which has been submitted to ORG , is summarised as paragraphs CARDINAL–CARDINAL below .

NORP In DATE , ORG advised ORG that LAW precluded the deportation of terrorist suspects to GPE . In DATE , after a Government review of the possibility of removing such barriers to removal , ORG confirmed that its advice of DATE remained extant but that it was considering whether key countries would be willing and able to provide the appropriate assurances to guarantee that potential deportees would be treated in a manner consistent with GPE obligations . In DATE , the ORG Secretary agreed that seeking specific and credible assurances from foreign governments , in the form of memoranda of understanding , might be a way of enabling deportation from GPE .

In DATE , ORG in GPE was instructed to raise the idea of a framework memorandum of understanding ( ORG ) with ORG . In DATE , after meetings between the Prime Minister of GPE and GPE , and between the Secretary of ORG for ORG and the NORP Foreign Minister , agreement was reached on the principle of an ORG .

Further negotiations took place in DATE and an ORG was signed on DATE . That ORG set out a series of assurances of compliance with international human rights standards , which would be adhered to when someone was returned to CARDINAL ORG from the other ( see paragraph DATE below ) . DATE , a side letter from GPE , GPE , to ORG was signed , which recorded ORG ability to give assurances in individual cases that the death penalty would not be imposed . In respect of the applicant , further questions as to the conduct of any retrial he would face after deportation were also put to ORG and answered in DATE by LAW at ORG .

NORP The ORG also made provision for any person returned under it to contact and have prompt and regular visits from a representative of an independent body nominated jointly by GPE and ORG . On DATE , FAC ( “ the FAC ” ) signed a monitoring agreement with ORG . On DATE , the terms of reference for the ORG were agreed ( see paragraph CARDINAL below ) .

On DATE , that is , DATE after the ORG was signed , the Secretary of ORG served the applicant with the notice of intention to deport . The Secretary of ORG certified that the decision to deport the applicant was taken in the interests of national security . The applicant appealed to ORG against that decision arguing , inter alia , that it was incompatible with ORG , DATE , DATE and CARDINAL of the LAW . Relying on his previous asylum claim , he argued that his high profile would mean he would be of real interest to the NORP authorities . If returned , he would also face retrial for the offences for which he had been convicted in absentia . He would thus face lengthy pre - trial detention ( in breach of LAW and , if convicted , would face a long term of imprisonment . All these factors meant he was at real risk of torture , either pre - trial or after conviction , to obtain a confession from him or to obtain information for other reasons . He was also at risk of the death penalty or rendition to other countries , such as GPE . Relying on DATE , he alleged that his retrial would be flagrantly unfair : ORG , a military court , lacked independence from the executive and there was a real risk that evidence obtained by torture – either of him , his co - defendants or other prisoners – would be admitted against him .

The applicant ’s appeal was dismissed by ORG on DATE . The appeal had been heard by ORG in CARDINAL parts : an “ open session ” , where the Secretary of ORG ’s case and evidence was presented in the presence of the applicant and his representatives , and a “ closed session ” where parts of the Secretary of ORG ’s case which could not be disclosed for security reasons were presented ( see paragraph CARDINAL below ) . ORG heard evidence in closed session relating to the process by which the ORG had been agreed , the extent to which it would mitigate the risk of torture and also evidence as to the national security threat the applicant was alleged to have posed to GPE ( “ closed material ” ) . In the closed sessions , the applicant and his representatives were excluded but his interests were represented by special advocates . ORG then delivered an “ open judgment ” , which is publicly available , and a “ closed judgment ” , which was given only to the Secretary of ORG and the special advocates .

In reaching its decision as to whether the applicant ’s deportation was necessary in the interests of national security , ORG considered the Secretary of ORG ’s case to be “ well proved ” since the applicant was regarded by many terrorists as a spiritual adviser whose views legitimised acts of violence . However , ORG did not take into account either of the applicant ’s NORP convictions in absentia , which were originally advanced as part of the Government ’s case . The reason for this was that the Government had adopted what was described as a “ pragmatic approach ” in withdrawing reliance upon any evidence which it was alleged might have been obtained by torture on the grounds that it would require an investigation as to whether it was obtained by torture . This was done in accordance the ORG of Lords’ ruling in ORG and others ( no . CARDINAL ) to that effect ( see paragraphs CARDINAL and CARDINAL below ) .

ORG then reviewed the evidence it had heard from various sources including a senior GPE diplomat , Mr PERSON , who gave evidence on the negotiation of the ORG , the monitoring agreement with ORG and on the risk faced by the applicant in GPE . On behalf of the applicant , it heard evidence on the NORP regime from CARDINAL academics . It also received evidence from an LANGUAGE speaking barrister , PERSON , who had travelled to GPE to conduct research on the previous CARDINAL trials including interviews with the defendants and their lawyers . Additionally , it considered evidence of ORG interest in the applicant and allegations that a NORP national had been the subject of extraordinary rendition from GPE to GPE .

ORG found that this ORG ’s judgments in PERSON v. GPE , DATE , Reports of Judgments and Decisions DATE and PERSON and PERSON v. GPE [ ORG ] , ORG . CARDINAL and CARDINAL , ORG CARDINALI , showed that reliance could lawfully be placed on assurances ; but the weight to be given depended on the circumstances of each case . There was a difference between relying on an assurance which required a ORG to act in a way which would not accord with its normal law and an assurance which required a ORG to adhere to what its law required but which might not be fully or regularly observed in practice . Referring to a decision of ORG , Agiza v. GPE ( see paragraph CARDINAL below ) , where the NORP authorities had expelled an NORP national after receiving assurances from GPE , ORG continued :

“ The case of Agiza stands as a clear warning of the dangers of simple reliance on a form of words and diplomatic monitoring . There were already warning signs which ought to have alerted the NORP authorities to the risks , including the role they had permitted to a foreign intelligence organisation . But we note what to us are the crucial differences : the strength , duration and depth of the bilateral relationship between the CARDINAL countries by comparison with any that has been pointed to between GPE and GPE ; the way in which the negotiations over the ORG have proceeded and the diplomatic assessment of their significance ; the particular circumstances of [ the present applicant ] and GPE ; the degree of risk at the various stages , in the absence of the ORG , particularly at the early stages of detention which is when the risk from torture by the ORG would normally be at its greatest and when the confirmed torture of Agiza in GPE appears to have occurred ; and the speed with which the monitors would be seeking and we believe obtaining access to the Appellant in DATE . The NORP felt that to seek to see Agiza would betray a want of confidence in the NORP , whereas there is no such feeling in either the GPE , the [ ORG or ORG . Quite the reverse applies . CARDINAL aspect of that case which also troubled the [ Committee Against Torture ] was that Agiza had been removed without final judicial determination of his case . That would not be the position here . ”

In the present case , the political situation in GPE and the freedom , albeit limited , of non - governmental organisations , the press and ORG to express concerns would reduce the risks the applicant faced . In addition , the level of scrutiny PERSON had accepted under the ORG could not but show that it was willing to abide by its terms and spirit . Each country had a real interest in preventing breaches of the ORG : the diplomatic relationship between GPE and GPE was friendly and long - standing and of real value to GPE and it would have a real incentive to avoid being seen as having broken its word . Both countries had an interest in maintaining co - operation on counter - terrorism matters . GPE had a very real concern that it should be able to remove foreign nationals without breaching their rights under LAW , so failure in such a highly publicised case would be a major setback for that process . That concern would thus act as a further incentive to investigate any breaches of the ORG . While the ORG did not specify what steps would be taken in such an investigation , ORG accepted evidence from FAC that any failure of ORG to respond to diplomatic queries would lead to “ rapidly escalating diplomatic and Ministerial contacts and reactions ” .

ORG accepted that there were some weaknesses in the ORG and monitoring provisions . Some protections , such as prompt access to a lawyer , recorded interviews , independent medical examinations and prohibition on undisclosed places of detention , were not explicitly present but , in reality , most of these aspects were covered . There was no guarantee that access to the applicant , as required by ORG terms of reference , would always be granted but any refusal would be brought to light quite quickly ; in DATE of detention , the ORG was expected to visit the applicant CARDINAL times a week . ORG also expected the ORG and ORG to react swiftly to any approach by GPE were a visit to be refused . It was “ disturbing ” that ORG on Torture had been refused access to a ORG facility in DATE , despite a prior arrangement that he would be permitted free access . However , on the evidence it had heard , ORG found that there was no real risk of ill - treatment of the applicant by the ORG . There was a weakness in the ORG “ relative inexperience and scale ” ; it would be undertaking a task which would be new to it ; and it did not have the expertise among its staff , as it had recognised . It was a fairly new body with limited resources and staff , although this could be overcome and ORG would bear the cost . It was the very fact of monitoring visits which was important and the absence of specialist expertise was not fatal to their value .

ORG did not contest the general thrust of the available material in relation to GPE ’s human rights record and , in ORG ’s view , details of human rights violations in GPE remained relevant to the assessment of the risk faced by the applicant . The Government also took the position that it could not return the applicant to GPE , in conformity with its international obligations , in the absence of the particular measures contained in the ORG . Nevertheless , ORG found it important to consider the risks faced by the applicant by reference to the likely sequence of events if he were to be returned . It found that the ORG might not be necessary for each risk but rather reinforce the protection available .

ORG accepted that , on return , the applicant would be taken into the custody of the ORG and retried on the CARDINAL charges for which he had been convicted in absentia . He would be accompanied by a representative of FAC to his place of detention and be medically examined . ORG also accepted that the ORG would interrogate the applicant with a view to obtaining a confession for use at trial and for more general intelligence purposes , though ORG found it to be speculative that ORG would interrogate the applicant about other offences in order to bring further charges against him ; there was no evidence of any other charges outstanding . ORG also accepted that GPE would seek to question the applicant and that this would take place soon after his arrival in GPE . However , there was no real risk that LAW would be breached before the conclusion of the retrial .

There was a real risk of torture or ill - treatment of an “ ordinary NORP extremist ” in ORG detention before charge since such ill - treatment was widespread and longstanding and there was a climate of impunity and evasion of international monitoring in the ORG . However , the applicant would be protected by his high profile , by the ORG and the monitoring agreement , especially since FAC would be “ keen to prove its mettle ” and would itself be subject to the vigilance of other nongovernmental organisations . This would also prevent any real risk of the use by the ORG of tactics such as TIME refusals of access , claims that the applicant did not wish to see the monitors or moving him elsewhere without notification . Access by ORG would also prevent the applicant ’s incommunicado detention .

NORP The ORG would also counteract the climate of impunity prevailing in the ORG and toleration of torture by its senior members . The ORG and the monitoring arrangements were supported at the highest levels in GPE – the King of GPE ’s political power and prestige were behind the MOU – so it was reasonable to assume that instructions on how to treat the applicant had been given to the ORG and it would be aware that any breaches would not go unpunished . Moreover , senior members of the ORG had participated in the ORG negotiations and therefore would know the consequences of any failure to comply . Even if abuses were normally the work of rogue officers , the specific and unusual position of the applicant and the effect of the ORG would lead to senior officers preventing ill - treatment in his case , even if they did so only out of self - interest .

Questioning by GPE was not forbidden by the ORG and , to ORG , it was probable that ORG would be allowed to question the applicant directly with the ORG present . However , GPE would have made clear to GPE its interests in ensuring that the ORG was not breached . The NORP authorities and GPE would be careful to ensure that GPE did not “ overstep the mark ” . Assuming that the applicant remained in ORG custody and was not surrendered to GPE , there would be no real risk of ill - treatment at the pre - trial stage . It was also highly unlikely that the applicant would be placed in any secret ORG or ORG detention facility in GPE .

The same factors applied to any questioning which might take place soon after the conviction or acquittal of the applicant . The ORG would continue to apply and it would be in the interests of both the NORP and the NORP to conduct any interrogation at the earliest opportunity rather than wait until after trial . The applicant ’s high profile was also found to be “ unlikely to diminish much for DATE ” .

There was little likelihood of the NORP authorities bringing any subsequent charges which carried the death penalty or seeking the death penalty in respect of the charges for which the applicant was to be retried . Instead , if he were convicted , the applicant would face a lengthy period of imprisonment . There was a real risk of a life sentence in respect of the ORG and ORG conspiracy , although there was a greater prospect that it would be considerably less because of the way in which sentences on the other defendants appeared to have been reduced on appeal , to DATE . There was no real risk of a life sentence in the millennium conspiracy retrial . There was no rule that would prevent a higher sentence being imposed than the DATE sentence that had been imposed in absentia . However , the clear practice was against imposing higher sentences in retrials following initial convictions in absentia and there was no reason why a more unfavourable view would be taken of the applicant when he was present than when he was absent . The applicant would serve any sentence in an ordinary prison and not a ORG detention facility ; the sentence of hard labour did not connote any additional punishment . General conditions would not breach LAW and , although beatings sometimes occurred , there was no evidence that the applicant would be targeted as a political NORP prisoner . His status would again act to protect him .

In respect of rendition , there were “ powerful incentives ” for the NORP and ORG not to allow this to happen , not least the real domestic political difficulties this would create for ORG and the unwillingness of GPE to destabilise the NORP regime . Any instances of alleged rendition from GPE had involved people of other nationalities or , in CARDINAL case , of a dual GPE / NORP national . It was also very unlikely that the applicant would be removed to a secret ORG facility in GPE since this would require the connivance of the NORP authorities contrary to the ORG . It was also unlikely that ORG would seek the extradition of the applicant from GPE when it had not sought his extradition from GPE and there would be political difficulties for GPE to accede to such a request .

NORP In relation to the applicant ’s detention following his removal to GPE , ORG found that the time limits for notifying the legal authorities of an arrest ( TIME ) and for bringing formal charges ( DATE ) were regularly and lawfully extended by the courts at the request of the prosecutor , in stages of DATE to a maximum of DATE . It would therefore be compatible with NORP law for the applicant to be held in detention for DATE without being physically brought before a court before being charged . Such extensions were approved by a judicial authority , although not necessarily in the physical presence of the suspect .

ORG noted that the ORG did not explicitly require that there be no extensions of time beyond the initial DATE detention but required that a returned person be brought promptly before a judge or other person authorised by law to determine the lawfulness of his detention . Though “ promptly ” was not defined in the ORG , ORG found that this part of the ORG would be carried out , particularly since this was one of the earliest points at which the ORG would be engaged , and that the applicant ’s first appearance before a judicial authority would be within TIME . It would not breach the ORG if the applicant were to be detained for a maximum of DATE , by means of judicially approved DATE extensions , or if he were absent when those later decisions were taken . However , in reality the total period of DATE was unlikely to be sought , even without the ORG , because the applicant faced a retrial and the case dossiers had already been through the trial and appeal process a number of times .

It was common ground before ORG that the applicant ’s previous convictions would be set aside and he would face retrial before ORG on the same charges .

In addition to his CARDINAL challenges to the retrial process ( the impartiality of ORG and the use of evidence obtained by torture ) the applicant also argued that he would be questioned in detention without the presence of a lawyer by the ORG , GPE officials or ORG . The latter had the power under Article CARDINAL ) of ORG to conduct an investigation in the absence of a lawyer “ whenever he [ deemed ] it necessary in order to reveal the truth ” . This decision was not subject to review , though ORG also noted that a confession before ORG was not admissible unless the individual had been warned that he need not answer questions without his lawyer present . ORG thought it unlikely that the applicant would have a lawyer present during questioning by the ORG or GPE officials but very likely he would have access to a lawyer for any appearance before a judge or ORG . In terms of pre - trial preparation by the defence , the period and facilities available would be less extensive than in GPE but nonetheless better than would normally be the case in GPE .

With regard to the lack of independence and impartiality of ORG , ORG found that the court would consist of CARDINAL judges , CARDINAL of whom would be legally qualified military officers with no security of tenure . ORG would also be a military officer . Appeal would lie to ORG , a civilian court , though that court could not hear argument on any unfairness of the trial arising from the military composition of ORG .

As to the potential use of evidence obtained by torture in the applicant ’s retrial , ORG found as follows :

“ CARDINAL . NORP The NORP legal system , by its terms , does not therefore permit the use of involuntary confession or incriminatory statements . There is a judicial examination of allegations of that nature before the evidence is admitted . Those allegations can themselves be tested by evidence . How far those allegations can be practicably tested is affected by certain features of the system . The burden of proof for excluding confessions made to the Prosecutor lies on the defendant . There is obvious difficulty in proving prior acts or threats by the ORG in the absence of systems for recording questioning , for ensuring the presence of lawyers during questioning , and independent prompt medical examinations . There is likely to be considerable reluctance on the part of the ORG to accept that confessions to the Prosecutor , a common source of evidence , are tainted by ill - treatment . ORG does not appear prepared to compel the appearance of ORG officials to testify about these allegations . There may be a sense that these allegations are made routinely , as a matter of defence strategy .

There may well be a greater willingness to test the nature of confessions made only in the course of ORG questioning . There is some evidence that at least at ORG level , confessions alleged to have been obtained by torture have been excluded , ( though it is not clear whether those were made to the ORG or to the Prosecutor ) .

NORP However , the general background evidence and that specific to the CARDINAL trials in question shows that there is at least a very real risk that the incriminating statements against the [ applicant ] were obtained as a result of treatment by the ORG which breached LAW ; it may or may not have amounted to torture . It is very improbable that those statements would be excluded on the retrial , because the SSCt is unlikely to be persuaded that they were so obtained , particularly having already rejected that assertion at the first trials , although the makers could give evidence that they were so obtained and were in fact untrue . ”

There was , therefore , a high probability that the past statements made to ORG which incriminated the applicant would be admitted . ORG further found that those statements would be of considerable , perhaps decisive , importance against him . On this aspect of the retrial , ORG held :

“ CARDINAL . To us , the question comes back to whether or not it is unfair for the burden of proof in GPE to lie where it does on this issue ; we do not think that to be unfair in itself . However , this burden of proof appears to be unaccompanied by some of the basic protections against prior ill - treatment or means of assisting its proof eg video or other recording of questioning by the ORG , limited periods of detention for questioning , invariable presence of lawyers , routine medical examination , assistance from the ORG in calling relevant officials or doctors . The decisions are also made by a court which lacks independence and does not appear to examine closely or vigorously allegations of this nature . It is taking these points in combination which leads us to conclude that the trial would be likely to be unfair within DATE because of the way the allegations about involuntary statements would be considered . ”

ORG concluded that , despite its findings in respect of the independence and impartiality of ORG and the real risk of the admission of evidence obtained contrary to LAW , there would be no flagrant denial of justice under LAW if the applicant were retried in GPE . ORG stated that the retrial would take place “ within a legally constructed framework covering the court system , the procedural rules and the offences ” , the applicant would be present and it would be in public . The dossier from the original trial would be before the retrial court but the applicant could effectively challenge its contents . The execution of PERSON and the difficulty faced by other witnesses , notably PERSON , would not make the retrial unfair . ORG concluded :

“ CARDINAL . We accept the lack of institutional independence in the SSCt . The lack of independence for SSCt ORG is in the structure and system . There is no evidence as to why particular judges might be chosen for particular cases , or that they are ‘ leaned GPE . But the SSCt is not a mere tool of the executive : there is sound evidence that it appraises the evidence and tests it against the law , and acquits a number of defendants . It has reduced sentences over time .

Its judges have legal training and are career military lawyers . There is a very limited basis beyond that for saying that they would be partial , and that has not been the gravamen of the complaint . Their background may well make them sceptical about allegations of abuse by the ORG affecting statements made to the Prosecutor . They may instinctively share the view that allegations of ill - treatment are a routine part of a defence case to excuse the incrimination of others . The legal framework is poorly geared to detecting and acting upon allegations of abuse . The way in which it approaches the admission of evidence , on the material we have , shows no careful scrutiny of potentially tainted evidence . There would be considerable publicity given to the retrial and public trials can encourage greater care and impartiality in the examination of the evidence . This would not be a mere show trial , nor were the first trials ; nor would the result be a foregone conclusion , regardless of the evidence .

Reasons are given for the decisions , and an appeal to ORG is available . The fact that such an appeal can not cure the want of structural independence in the SSCt is not a reason for discounting its existence in the overall assessment of whether there would be a complete denial of Article CARDINAL rights . ORG is a civilian court and the evidence of undue executive influence through appointment or removal is quite sparse . There is no evidence again as to how its panels are chosen , nor that they are “ leaned on ” by the executive . It plainly operates as a corrective to the rulings of the SSCt on law and procedure , and is of some relevance to factual matters , even though it does not hear the evidence all over again or have a full factual jurisdiction except on ORG appeals . The probable sentences are not wholly disproportionate to the offences .

We have discussed at length the approach of the SSCt to the admission of statements to a prosecutor allegedly given as a result of prior ill - treatment . Although we take the view that a contribution of factors would probably make the retrial unfair in that respect , they do not constitute a complete denial of a fair trial . The existence of a legal prohibition on the admissibility of such evidence can not be ignored , nor the fact that the SSCt would hear evidence relating to the allegations . The role of ORG in reviewing and at times overturning the conclusions of the SSCt on this issue is material . The want of evidential or procedural safeguards to balance the burden of proof , and the probable cast of mind towards statements made to a prosecutor / judge in a civil law system , all within a security court dominated by military lawyers , does not suffice for a complete denial of justice .

There is a danger , given the inevitable focus on what is said to be potentially unfair about the retrial , in focussing exclusively on deficiencies when deciding whether there would be a total denial of the right to a fair trial , rather than looking at the picture of the trial as a whole . That is what has to be done however and it is that picture as a whole which has led us to our conclusion on this issue .

The various factors which would be likely to cause the retrial to breach LAW are to a considerable degree interlinked . Taking them in the round does not persuade us that there is a real risk of a total denial of the right to a fair trial . ”

Finally , while there was the real prospect of a long term of imprisonment , this did not alter ORG ’s conclusion that the overall nature of the retrial would not be a total denial of the applicant ’s rights .

The applicant appealed to ORG , which gave judgment on DATE , unanimously allowing the appeal in respect of Article CARDINAL and the risk of the use of evidence obtained contrary to LAW and dismissing it on all other grounds ( [ DATE ] EWCA Civ CARDINAL ) .

For the applicant ’s complaints under LAW as to the use of closed evidence by ORG and the reliance on the assurances in the ORG , ORG considered it was bound by its previous ruling on these questions in GPE ( GPE ) , PERSON ( GPE ) , NORP ( GPE ) v. the Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL , which had found that : ( i ) ORG could consider closed evidence on safety on return ; and ( ii ) the relevance of assurances to safety on return was a matter of fact not law and thus it had no jurisdiction to entertain an appeal on that ground . ORG also rejected the applicant ’s appeals based on DATE , finding that ORG was entitled to find as it did .

For DATE , ORG rejected the applicant ’s argument that there was a real risk of a “ flagrant denial of justice ” in his retrial in GPE by reason of a lack of independence and or impartiality of ORG : ORG had been entitled to find as it did on this point and this conclusion was not altered by the later decision of ORG in AlMoayad v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE .

However , ORG accepted the applicant ’s argument that there was a real risk that he would suffer a “ flagrant denial of justice ” by reason of the risk that statements obtained through treatment contrary to LAW would be admitted as evidence against him in his retrial . ORG observed :

“ CARDINAL . SIAC understated or misunderstood the fundamental nature in Convention law of the prohibition against the use of evidence obtained by torture . Counsel for the Secretary of ORG said that it was no part of his submission to say that if it is clear that a trial will take place on the basis of evidence obtained under torture , whether of the individual themselves , or third parties , that that would not involve flagrant denial of justice . Accordingly , once ORG had found as a fact that there was a high probability that evidence that may very well have been obtained by torture ( ORG , LAW ) ; or in respect of which there was a very real risk that it had been obtained by torture or other conduct breaching article CARDINAL ( ORG , § CARDINAL ) ; would be admitted at the trial of Mr PERSON ; then ORG had to be satisfied that such evidence would be excluded or not acted on . The grounds relied on by ORG for not finding a threatened breach of LAW in that respect were insufficient .

We emphasise that that is not or not primarily a criticism of ORG ’s reasoning in terms of rationality , though we do consider additionally that ORG ’s conclusions did not follow rationally from its findings of fact . Rather , our principal finding is that ORG erred by applying an insufficiently demanding test to determine the issue of whether LAW rights would be breached .

The use of evidence obtained by torture is prohibited in Convention law not just because that will make the trial unfair , but also and more particularly because of the connexion of the issue with article CARDINAL , a fundamental , unconditional and non - derogable prohibition that stands at the centre of the ORG protections . As the ECtHR put it in § CARDINAL of its judgment in Jalloh v GPE CARDINAL EHRR CARDINAL :

‘ incriminating evidence - whether in the form of a confession or real evidence - obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture - should never be relied on as proof of the victim ’s guilt , irrespective of its probative value . Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Art.CARDINAL of the ORG sought to proscribe or , as it was so well put in ORG judgment in the NORP case CARDINAL US CARDINAL , “ to afford brutality the cloak of law”.’

That view , that the use of evidence obtained by torture or ill - treatment is prohibited not just , or indeed primarily , because of its likely unreliability , but rather because the state must stand firm against the conduct that has produced the evidence , is universally recognised both within and outside Convention law .

What is , with respect , a particularly strong statement to that effect , citing a multitude of equally strongly worded authorities , is to be found in LAW of the speech of Lord PERSON in A v Home Secretary ( NoCARDINAL ) [ DATE ] CARDINAL AC CARDINAL .

ORG was wrong not to recognise this crucial difference between breaches of article CARDINAL based on this ground and breaches of article CARDINAL based simply on defects in the trial process or in the composition of the court . Rather , in its conclusions in § § DATE of its determination ... it treated the possible use of evidence obtained by torture pari passu with complaints about the independence of the court : see in particular SIAC at § § CARDINAL - CARDINAL . That caused it not to recognise the high degree of assurance that is required in relation to proceedings in a foreign state before a person may lawfully be deported to face a trial that may involve evidence obtained by torture . ”

ORG noted that ORG had reached its conclusion that there would not be a complete denial of justice in relation to the use of evidence obtained by torture by relying on the process , admittedly not wholly satisfactory , before ORG and ORG . For ORG that conclusion sat very ill with ORG ’s own findings about ORG process , in particular ORG ’s own concern as to the difficulties in proving that evidence had been obtained by torture . In the opinion of ORG , ORG ’s concern was “ amply justified by the litany of lack of the basic protections against prior ill - treatment ” in GPE . It also criticised ORG ’s “ disturbing failure ” to give proper weight to the findings as to the defects in ORG . ORG concluded :

“ It was not open to ORG to conclude on that evidence that the risk of the total denial of justice that is represented by the use of evidence obtained by torture had been adequately excluded . ORG could not have so concluded if it had properly understood the status in LAW this aspect of article CARDINAL . ”

NORP The Secretary of ORG appealed to ORG in relation to ORG conclusion on DATE . The applicant cross - appealed in relation to his other ORG complaints . The appeal was heard with the appeals of CARDINAL of the appellants in GPE ( GPE ) , GPE and ORG see paragraph CARDINAL above ) . In the conjoined appeals ORG was therefore able to consider the use of closed material before ORG , the reliance on the assurances contained in the ORG and the applicant ’s Articles CARDINAL and CARDINAL complaints . ORG gave judgment on CARDINAL DATE unanimously allowing the ORG ’s appeal and dismissing the applicant ’s cross - appeal ( [ DATE ] ORG CARDINAL ) .

Lord PERSON held that ORG was lawfully entitled to consider closed material in evaluating safety on return and there were cogent considerations of policy for doing so . A distinction had to be drawn between closed material on safety on return and the use of closed material in other proceedings , for example to establish the national security threat posed by an individual . For the former , the individual would normally be aware of the nature of any risk on return and , in any event , it was for the individual himself , and not the ORG , to make out his case on whether he would be at risk on return . It was not likely to be critically important for a special advocate to be able to obtain input from the person to be deported in relation to closed evidence . As regards the impracticality of obtaining an appropriate expert witness with security clearance to see the material , Lord PERSON did not regard the problem as unfair . ORG ’s rules of procedure enabled the special advocate to ask ORG to call for more evidence and ORG , as an expert tribunal , could be relied upon “ to make a realistic appraisal of the closed material in the light of the special advocate ’s submission ” . In respect of the assurances , Lord PERSON endorsed the view that the assurances contained in the ORG had to be disclosed but details of the negotiations leading to the ORG could be closed material .

Lord PERSON rejected the applicant ’s argument on the more fundamental basis that he viewed this ORG ’s case - law as making it clear that the determination whether a deportation order might infringe LAW did not require “ the full judicial panoply of article CARDINAL or even CARDINAL(CARDINAL ) ” . Citing Chahal , cited above , he emphasised that all that was required was “ independent scrutiny of the claim ” , which had occurred in the applicant ’s case .

Lord Hope agreed , albeit accepting that this ORG had not yet had the opportunity to analyse whether the ORG system met the requirements of the Convention . In his view , it did so . Lord PERSON also agreed , emphasising that with regard to safety on return , no case was being made against the applicant ; rather it was he who was making a case against the returning ORG .

Lord PERSON ( with whom the other ORG agreed ) construed the this ORG ’s case - law from PERSON and PERSON , cited above , onwards as treating assurances “ as part of the matrix that had to be considered ” when deciding whether there were substantial grounds for believing that the applicant would face treatment contrary to LAW . He referred to the “ abundance ” of international law material , which supported the proposition that assurances should be treated with scepticism if they are given by a country where inhuman treatment by ORG agents was endemic . However , for Lord PERSON this came “ close to a ‘ Catch CARDINAL proposition that if you need to ask for assurances you can not rely on them ” . In rejecting that proposition , he held that the only basis to interfere with the view of ORG was if its conclusions that the assurances could be relied upon were irrational and ORG ’s conclusions in the present case were not .

ORG unanimously refused to interfere with the finding of fact by ORG that the applicant ’s exposure under NORP law to CARDINAL days’ detention without access to a court or a lawyer , would not arise . Lord PERSON found that , even if it would arise , CARDINAL days’ detention would not constitute a flagrant breach of LAW . A flagrant breach was a breach whose consequences were so severe that they overrode the right of a ORG to expel an alien from its territory . That might be satisfied by arbitrary detention which lasted DATE but not CARDINAL days’ detention .

On DATE , taking the test to be whether there would be a “ complete denial or nullification ” of the right to a fair trial , Lord PERSON observed :

“ CARDINAL . This is neither an easy nor an adequate test of whether article CARDINAL should bar the deportation of an alien . In the first place it is not easy to postulate what amounts to ‘ a complete denial or nullification of the right to a fair ORG . That phrase can not require that every aspect of the trial process should be unfair . ... What is required is that the deficiency or deficiencies in the trial process should be such as fundamentally to destroy the fairness of the prospective trial .

In the second place , the fact that the deportee may find himself subject in the receiving country to a legal process that is blatantly unfair can not , of itself , justify placing an embargo on his deportation . The focus must be not simply on the unfairness of the trial process but on its potential consequences . An unfair trial is likely to lead to the violation of substantive human rights and the extent of that prospective violation must plainly be an important factor in deciding whether deportation is precluded . ”

Having reviewed , the relevant case - law of this ORG , including PERSON and GPE v. GPE , no . CARDINAL , § DATE , ORG CARDINALXI , which he took to exemplify the need to consider the risk of a violation of LAW in combination with other ORG such as ORG and CARDINAL , Lord PERSON found :

“ [ T]he GPE jurisprudence , tentative though it is , has led me to these conclusions . Before the deportation of an alien will be capable of violating article CARDINAL there must be substantial grounds for believing that there is a real risk ( i ) that there will be a fundamental breach of the principles of a fair trial guaranteed by article CARDINAL and ( ii ) that this failure will lead to a miscarriage of justice that itself constitutes a flagrant violation of the victim ’s fundamental rights . ”

In the present case , the second limb was met by the potential sentences of imprisonment the applicant faced . For the first limb , Lord PERSON concluded that , although the military constitution of ORG would render the trial contrary to LAW if it were held in FAC , he agreed with ORG and ORG , that it could not amount to a “ flagrant denial of justice ” sufficient to prevent deportation in a removal case .

In respect of the applicant ’s complaint that there was a real risk that the evidence against him had been obtained by torture , Lord PERSON held that ORG erred . It had required too high a degree of assurance that evidence that might have been obtained by torture would not be used in a foreign trial . He stated :

“ [ T]he prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair . Rather it is because ‘ the state must stand firm against the conduct that produced the evidence’ . That principle applies to the state in which an attempt is made to adduce such evidence . It does not require this state , GPE , to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in GPE ... The issue before ORG was whether there were reasonable grounds for believing that if Mr PERSON were deported to GPE the criminal trial that he would there face would have defects of such significance as fundamentally to destroy the fairness of his trial or , as ORG put it , to amount to a total denial of the right to a fair trial . ORG concluded that the deficiencies that ORG had identified did not meet that exacting test . I do not find that in reaching this conclusion ORG erred in law . ”

Lord PERSON found that there was no Convention authority for the rule that , in the context of the application of LAW to a removal case , the risk of the use of evidence obtained by torture necessarily amounted to a flagrant denial of justice .

Lord Hope agreed . He accepted that this ORG had adopted an “ uncompromising approach ” to the use at trial of evidence obtained by torture but the evidence before ORG did not come up to that standard . There were allegations but no proof . The assertion that there was a real risk that the evidence was obtained by torture was not enough to prohibit removal . He recalled ORG ’s findings that the retrial would probably not comply with LAW if PERSON were a party to the Convention but would take place within a legally constructed framework . There was sound evidence that ORG , which was not a mere tool of the executive , appraised the evidence and tested it against the law . ORG had therefore been entitled to find as it did on the evidence .

Lord PERSON agreed with Lord PERSON and , referring to the majority of ORG in PERSON and PERSON , cited above , stated : “ if extradition was not unlawful even in the circumstances arising there , in my judgment expulsion most certainly is not unlawful here . ”

Lord PERSON , who agreed with the other Law Lords on DATE and all other points of appeal , noted a considerable resemblance between the concept of “ flagrant unfairness ” in this ORG ’s case - law and the concept of denial of justice in public international law generally . For the latter , the modern consensus was that the factual circumstances had to be egregious for ORG responsibility to arise in international law .

As stated in GPE and Others v. GPE , cited above , § CARDINAL , ORG was set up in response to this ORG ’s judgment in PERSON , cited above .

DATE . Under section CARDINAL(CARDINAL ) of ORG DATE , appeal to ORG lies in respect of immigration decisions , including decisions to deport , when the Secretary of ORG ’s decision is taken wholly or partly on grounds of national security or wholly or partly in reliance on information which in the Secretary of ORG ’s opinion should not be made public in the interests of national security , the interests of the relationship between GPE and any other country , or otherwise in the public interest .

As was also stated in DATE and Others , § CARDINAL , ORG has a special procedure which enables it to consider not only material which can be made public ( “ open material ” ) but also other material which can not ( “ closed material ” ) . Neither the appellant nor his legal advisor can see the closed material . Accordingly , CARDINAL or more security - cleared counsel , referred to as “ special advocates ” , are appointed by ORG to act on behalf of the appellant .

Rule CARDINAL of ORG ( Procedure ) Rules DATE ( “ the DATE Rules ” ) governs the use of closed material and states :

“ ( CARDINAL ) When exercising its functions , the Commission shall secure that information is not disclosed contrary to the interests of national security , the international relations of GPE , the detection and prevention of crime , or in any other circumstances where disclosure is likely to harm the public interest .

( CARDINAL ) Where these Rules require information not to be disclosed contrary to the public interest , that requirement is to be interpreted in accordance with paragraph ( CARDINAL ) .

( CARDINAL ) Subject to paragraphs ( CARDINAL ) and ( CARDINAL ) , the Commission must satisfy itself that the material available to it enables it properly to determine proceedings . ”

Rule CARDINAL ) directs that when serving closed material upon the special advocate , the Secretary of ORG must also serve a statement of the material in a form which can be served on the appellant , if and to the extent that it is possible to do so without disclosing information contrary to the public interest .

Rule CARDINAL provides that a special advocate may challenge the Secretary of ORG ’s objections to disclosure of the closed material . ORG may uphold or overrule the Secretary of ORG ’s objection . If it overrules the objection , it may direct the Secretary of ORG to serve on the appellant all or part of the closed material which he has filed with the ORG but not served on the appellant . In that event , the Secretary of ORG shall not be required to serve the material if he chooses not to rely upon it in the proceedings .

A search is carried out for “ exculpatory material ” , that is , material that will advance the case of an appellant or detract from the case of the Secretary of ORG . Exculpatory material is disclosed to the appellant save where this would not be in the public interest . In that event it is disclosed to the special advocate .

Section CARDINAL of the CARDINAL Act confers a right of appeal to ORG against a final determination of an appeal made by ORG in GPE and GPE “ on any question of law material to that determination ” .

In addition to GPE , the Government have negotiated memoranda of understanding on assurances with GPE , GPE and GPE . They have negotiated a framework agreement for obtaining assurances from GPE . ORG has heard appeals from CARDINAL individuals whom the ORG sought to deport on the basis of these assurances . ORG has considered these appeals on a case - by - case basis but the general approach it has taken to assurances was set out in ORG . v. the Secretary of ORG for ORG , ORG determination of DATE , § CARDINAL , where it found that , before assurances could remove a real risk of ill - treatment , CARDINAL conditions had to be satisfied :

( i ) the terms of the assurances had be such that , if fulfilled , the person returned would not be subjected to treatment contrary to LAW ;

( ii ) the assurances had been given in good faith ;

( iii ) there had to be a sound objective basis for believing that the assurances would be fulfilled ; and

( iv ) fulfilment of the assurances had to be capable of being verified .

Applying that test , ORG has found assurances to be sufficient for GPE ( see ORG ’s determinations in G ( DATE ) ; Z and W ( DATE ) Y , ORG and ORG DATE ) ; ORG ( DATE ) ; B ( DATE ) ; T ( DATE ) ; PERSON ( no . CARDINAL ) ( DATE ) ) . It also found them to be sufficient in respect of GPE in the case of GPE ( DATE ) . ORG found assurances to be insufficient in respect of GPE , given the changeable nature of the then PERSON regime ( DD and AS ( DATE ) ) .

PERSON ’s assurances were also found to be compatible with LAW ( DATE ) . ORG took note of further reports on torture in NORP prisons and considered that those reports confirmed its view that , without the ORG , there was a real risk of ill - treatment . However , those reports did not alter its conclusions in the present case that the ORG and ORG monitoring role provided sufficient protection .

DATE . The title of the ORG agreed between ORG and ORG refers to the regulation of the “ provision of undertakings in respect of specified persons prior to deportation ” .

The ORG states that it is understood that the authorities of each ORG will comply with their human rights obligations under international law regarding a person returned under the ORG . When someone has been accepted under the terms of the ORG , the conditions set out in paragraphs CARDINAL of the ORG will apply , together with any further specific assurances provided by the receiving state . Paragraphs CARDINAL to CARDINAL provide as follows :

“ CARDINAL . NORP If arrested , detained or imprisoned following his return , a returned person will be afforded adequate accommodation , nourishment , and medical treatment and will be treated in a humane and proper manner , in accordance with internationally accepted standards .

A returned person who is arrested or detained will be brought promptly before a judge or other officer authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided .

A returned person who is arrested or detained will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention , and of any charge against him .

NORP If the returned person is arrested , detained or imprisoned within DATE of the date of his return , he will be entitled to contact , and then have prompt and regular visits from the representative of an independent body nominated jointly by the GPE and NORP authorities . Such visits will be permitted at least once a fortnight , and whether or not the returned person has been convicted , and will include the opportunity for private interviews with the returned person . The nominated body will give a report of its visits to the authorities of the sending state .

Except where the returned person is arrested , detained or imprisoned , the receiving state will not impede , limit , restrict or otherwise prevent access by a returned person to the consular posts of the sending state during TIME . However , the receiving state is not obliged to facilitate such access by providing transport free of charge or at discounted rates . ”

Paragraph CARDINAL guarantees the right to religious observance in detention and paragraph CARDINAL provides for the right to a fair trial for a returned person in terms similar to LAW Paragraph CARDINAL replicates LAW , omitting references to paragraphs ( a ) and ( e ) of that Article .

NORP The ORG states that either Government may withdraw from the ORG by giving DATE notice but it will continue to apply to anyone who has been returned .

NORP The terms of reference for FAC ( the monitoring body ) provide that it must be operationally and financially independent of the receiving ORG and must be able to produce frank and honest reports . The terms of reference also state that it must have capacity for the task , with experts ( “ Monitors ” ) trained in detecting physical and psychological signs of torture and ill - treatment and access to other independent experts as necessary . A ORG should accompany every person returned under the ORG ( “ returned person ” ) throughout their journey from the sending ORG to the receiving ORG , and should go with them to their home or , if taken to another place , to that place . It should have contact details for a returned person and their next of kin and should be accessible to any returned person or next of kin who wishes to contact it . It should report to the sending ORG on any concerns raised about the person ’s treatment or if the person disappears . For DATE after the person returns , a ORG should contact him or her , either by telephone or in person , on a DATE basis .

In respect of detention , the terms of reference provide as follows :

“ CARDINAL . Visits to detainees

( a ) When ORG becomes aware that a returned person has been taken into detention , a Monitor or Monitors should visit that person promptly .

( b ) Thereafter , Monitors should visit all detainees frequently and without notice ( at least as frequently as the ORG permits ; Monitors should consider requesting more frequent visits where appropriate , particularly in the early stages of detention .

( c ) ORG should conduct interviews with detainees in private , with an interpreter if necessary .

( d ) ORG visits should be conducted by experts trained to detect physical and psychological signs of torture and ill - treatment . The visiting ORG should ascertain whether the detainee is being provided with adequate accommodation , nourishment , and medical treatment , and is being treated in a humane and proper manner , in accordance with internationally accepted standards .

( e ) When interviewing a detainee , a ORG should both encourage frank discussion and observe the detainee ’s condition .

( f ) ORG should arrange for medical examinations to take place promptly at any time if they have any concerns over a detainee ’s physical or mental welfare .

( g ) The Monitoring Body should obtain as much information as possible about the detainee ’s circumstances of detention and treatment , including by inspection of detention facilities , and should arrange to be informed promptly if the detainee is moved from CARDINAL place of detention to another . ”

Paragraph CARDINAL provides that , in order to monitor compliance with the right to fair trial , Monitors should have access to all court hearings , subject to the requirements of national security . Paragraph CARDINAL states that monitors should ensure that they are mindful of any specific assurances made by the receiving State in respect of any individual being returned , and should monitor compliance with these assurances . Paragraph CARDINAL , on reporting , provides that ORG should provide regular frank reports to the sending ORG and should contact the sending ORG immediately if its observations warrant .

In the context of proceedings before this ORG , the Government produced CARDINAL statements from Mr PERSON , a former diplomat and currently GPE PERSON with Assurances .

The first statement , dated DATE , outlined the closeness of ties between GPE and GPE , GPE support for various initiatives to enhance human rights in GPE , as well as various reports ( summarised at paragraphs CARDINAL–CARDINAL below ) , which showed PERSON ’s improving human rights record .

The first statement also explained that , after the signature of the ORG , the ORG together assessed which organisation should take on the independent monitoring . ORG had proposed ORG ( ORG ) and , when that body declined , ORG suggested PERSON , which was appointed . The monitoring agreement was signed after representatives from ORG met ORG Minister for LOC and GPE . There was a subsequent meeting between the Secretary of ORG for ORG and the President of ORG , Mr PERSON , and its founder and President , Mr GPE . PERSON and PERSON made clear that , despite criticism of their decision to act as monitoring body , they had felt it was important for the protection of human rights . They had not been forced into the role or accepted it for financial benefit .

The first statement also outlined PERSON ’s training and human rights awareness activities since it was founded in DATE . It had received funding from a large number of donor agencies but none from ORG . It had spoken out against the ORG and had prepared a study on combating torture in GPE , which candidly criticised the Government and the ORG . After boycotting their workshops for DATE , the ORG had been participating in a series of workshops which had started in DATE . In DATE , PERSON had participated in CARDINAL ORG visits to the ORG ’s GPE detention facility . Mr GPE had also responded in detail to ORG ’s criticism of its ability to monitor the ORG ( see paragraphs CARDINAL and CARDINAL below ) .

Mr PERSON also stated that ORG had provided grants and funding to PERSON worth GBP CARDINAL , which had been directed towards the human rights training for officials and to established a group of experts . As of DATE , the centre had CARDINAL full - time members of staff and CARDINAL part - time medical and legal experts . The centre had expanded to include ORG ( NTCT ) , which would act as ORG . The team had CARDINAL members and CARDINAL ORG staff .

Mr PERSON ’s second statement , dated CARDINAL DATE , reiterated that ties between GPE and GPE remained close after the change of Government in GPE . The statement also provided an overview of recent reforms in GPE , including changes to the criminal law to introduce more severe penalties for serious crimes such as torture and measures to increase press freedom . The statement also summarised PERSON ’s submissions to ORG in the course of the ORG consideration of GPE ’s second periodic report ( see paragraph CARDINAL below ) .

In the second statement , PERSON rejected any suggestion that there would be no incentive to reveal breaches of the ORG ; failure to abide by its terms would be likely to do serious damage to diplomatic relations ; action proportionate to any breach would certainly be taken by ORG . For FAC , he stated that there was nothing unusual in the fact that it had not carried out any monitoring in GPE thus far ; it operated on a project basis by developing proposals , seeking funding and implementing initiatives . Its NTCT had already visited PERSON prison on CARDINAL DATE . The ORG was not financially motivated ; it had lost money by agreeing to act as the monitoring body . Nor was it a forprofit organisation ; it was required to return any surplus for projects to donors . Nothing turned on its change to a limited liability company .

Mr PERSON also indicated that clarification been sought from ORG as to the apparent discrepancy between the LANGUAGE and LANGUAGE versions of the ORG ( the NORP version stating that there would be the right to monitoring for DATE after return ; the LANGUAGE version stating that , if a returnee was detained within DATE of return , he would have the right to monitoring ) . By the recent exchange of CARDINAL Note Verbale between ORG in GPE and ORG ( appended to the statement ) , the parties had indicated their understanding that : ( i ) if a returnee was detained within DATE of return , the ORG provided for monitoring until such a time as he was released and , potentially , indefinitely ; and ( ii ) a returnee who was detained DATE after return , would not be entitled to monitoring visits .

The applicant submitted a statement from Mr PERSON , of ORG , which had originally been prepared for the VV case ( see paragraph DATE above ) . Mr Wilcke had conducted visits to various detention facilities in GPE , which formed the basis for ORG subsequent report of DATE ( see paragraph CARDINAL below ) . Mr PERSON stated that he was accompanied on one visit by Mr Rababa of FAC . According to Mr Wilcke when they discussed the present applicant ’s case , PERSON appeared to be hearing details of the GPE deportation proceedings for the first time . In his statement , Mr Wilcke characterised Adaleh as very small and noted that it had not carried out any independent prison visits and had not tried to do so . Mr FAC therefore doubted that the assurances would provide an effective safeguard against ill - treatment of the applicant .

NORP In a statement of DATE , prepared specifically for the proceedings before ORG , the LANGUAGE - speaking barrister who had given evidence before ORG as to the previous trials in GPE , set out the discussions she had had with NORP lawyers and NGO officers about PERSON . They told her that Mr GPE had strong family links to the NORP security services . The centre ’s change to a for - profit company would have also required the approval of ORG and ORG as would Mr GPE ’s nomination to ORG of the ORG . None of those interviewed had any knowledge of the centre before it became ORG , it had no practical experience of monitoring and would be unable to prevent ill - treatment . The centre was also said to have behaved erratically in choosing experts for its anti - torture programmes ; it had preferred lawyers over physicians and had not chosen individuals with monitoring experience .

The parties have also provided extensive evidence on the applicant ’s original trials , including evidence which was not before ORG .

The Government provided a report of DATE , which had been prepared by CARDINAL NORP lawyers , PERSON and PERSON , the former Honorary Legal Adviser to the GPE Ambassador to GPE since DATE .

The report outlined the structure of the NORP legal system and the various and wide powers of Public Prosecutors whom it characterised as judges with an inquisitorial role . It also outlined the functions of the ORG and stated that cooperation between it and ORG was very close . ORG before that court was a military officer whose office was located within ORG premises . The report also noted that interrogations by ORG officers had the goal of obtaining “ confessions ” from suspects appearing before ORG ( quotation marks in the original ) .

The report stated that the rights of the accused had been enhanced by amendments made in DATE to LAW , which it considered to be a “ vital point ” in its conclusion that the applicant would receive a fair trial . The amendments also meant there could be no flagrant denial of the applicant ’s right to liberty because , among other reforms , the maximum period before which a detainee had to be brought before a court or public prosecutor had been reduced to TIME ( Article CARDINAL(b ) of LAW ( ORG ) . However , the report also noted that it was not possible to determine whether ORG would charge the applicant with new offences , which had been introduced by LAW DATE and which would allow for ORG to detain him for DATE ( renewable for DATE ) for the purposes of investigation .

The report also sought to comment on a number of ORG ’s findings in respect of NORP law . For instance , ORG had found that access to a lawyer being neither obligatory nor prohibited and that no lawyers were present during ORG interrogations . However , there was an obligation for legal representation before a Public Prosecutor , which could be waived by reasoned decision , for example when there was a need for rapid action to prevent evidence being lost ( LAW . The presence of a lawyer was unusual in all questioning by Public Prosecutors . By the same token , although ORG had made reference to the possibility of incommunicado detention , PERSON ) of the ORG provided that , any time in which contact with a suspect was restricted , this did not apply to contact with his lawyer . ORG had also found that , in any retrial , the case file from the first trial would be admitted as evidence and that witnesses would not be recalled for cross - examination ; this was incorrect as LAW ORG only allowed a previous case - file to be used as background , the court could only consider evidence which was led at the trial and the defendant would be able to cross - examine witnesses .

NORP The report also commented on ORG , which it said was composed of legal qualified military officers , who did not pursue military careers and were not serving officers . The law on the independence of the judiciary did not apply but nor did they enjoy judicial immunity from prosecution or civil proceedings . Sessions of the court were frequently closed to the public but the defendant would be represented .

The report recognized that allegations of torture were difficult to verify because police and security officials frequently denied detainees timely access to lawyers . However , torture , though occasionally used by the police , was not institutionalized , and it remained an “ individual action ” ; if detected , officers were subject to criminal sanctions . A measure of protection was provided to the accused in criminal proceedings by LAW ORG , which required an accused ’s statement to be signed and fingerprinted by him . It also had to be verified by ORG and his clerk . If the accused refused to sign his reasons had to be recorded . Article CARDINAL ) was a fundamental requirement , which , if not adhered to , invalidated the statement . A signature and , if the accused was illiterate , a fingerprint , were necessary to show that the statement was that of the accused . Contrary to PERSON evidence to ORG ( see paragraph ORG below ) , there was no evidence that fingerprinting was a clear sign of a false confession .

For confessions to ORG , the burden of proof was on the defendant to show that it was not legal ; the burden was reversed for confessions to the police . There was a corroboration requirement when the evidence of a co - accused was used against another co - accused . The report also analysed a series of ORG judgments where it had quashed ORG judgments because of improperly obtained confessions . It had also laid down rules as to when confessions would and would not be admitted ; where someone had been detained for longer than the prescribed time limit , there was a rebuttable presumption that the confession was improperly obtained .

NORP The report went on to examine the judgments that had been given in the applicant ’s previous trials . For the Reform and Challenge case , the report noted that , in rejecting some of the defendant ’s claims to have been tortured into giving confessions , ORG had relied on the evidence of the coroner , who had stated that he found no injuries on the men . In the DATE conspiracy trial ORG had found no evidence whatsoever to support claims of false confessions made by some of the defendants and , as the GPE lawyers had not referred them to the coroner for examination , there was no medical evidence to support their claims . ORG had , however , heard from officers who were present when the confessions were given and who testified that there were no beatings of any sort . ORG in its judgments had relied on the confessions ( including reconstructions at the crime scene ) and expert evidence . The evidence of the other defendants was likely to be determinative at the applicant ’s retrial , as they were important in his trials in absentia . The report also stated that , if alive , PERSON and PERSON would give evidence at any retrial .

For the Reform and ORG trial , the applicant provided a copy of ORG investigation report , which showed that the only evidence against him was the confession of PERSON . The confession was quoted in the report as stating that the applicant had provided encouragement for the attacks and congratulated the group afterwards . The only other evidence against him which was recorded in the report was that two books the applicant had written were found in the possession of AlHamasher and another defendant . The applicant also provided the grounds of appeal of PERSON which set out his claim that he had been detained and ill - treated for DATE in ORG custody then brought before ORG in the latter ’s office at the ORG building . The applicant also produced a letter from the ORG to PERSON lawyer which stated that the original videotapes of his interrogation had been destroyed . The grounds of appeal stated that , at trial , a ORG officer gave evidence that he had destroyed the tapes on the orders of his superior but refused to reveal the superior ’s identity . PERSON grounds of appeal also stated that lawyers for another defendant had witnessed their client telling ORG that he had been ill - treated : the ORG evidence had not been accepted by ORG , which preferred that of ORG . The grounds of appeal also summarised a medical report by a doctor who had examined the defendants DATE after their interrogations . The doctor had found bruising and scarring on the men ’s bodies , particularly their feet and legs . Given the passage of time , the doctor was unable to conclude how the men ’s injuries had been obtained but observed that they could have been caused by the impact of hard objects . In PERSON case , the doctor noted scars on his buttocks , which were consistent with being deliberately hit with a baton or similar object . The grounds of appeal also noted that family members of the defendants , including PERSON mother , had observed scars on the defendants’ feet and legs when they were first allowed to visit them . The ORG interrogators were not produced for cross - examination at trial , nor were the defendants’ medical records .

For the DATE conspiracy trial , the applicant submitted a copy of ORG investigation report in that case , which showed that PERSON confession was the predominant basis of the prosecution case against the applicant . A copy of his defence statement setting out his allegations of torture was also provided , which described injuries to the soles of his feet ( causing the skin to fall off when he bathed ) , facial injuries , bruising and scarring . He maintained that his injuries were witnessed by his brother - in - law , his cellmates and a representative from ORG . He also described how his statement had been changed many times until the officials in charge where satisfied with it . Afterwards , when he had been brought before the ORG and alleged he had been tortured , ORG refused to listen . Letters were also provided which had been written by PERSON PERSON ’s lawyer to the applicant ’s representative , PERSON , which summarised the steps the defence teams had taken to bring the torture allegations made by various defendants to the attention of ORG , including the protests made by ORG concerning the ill - treatment of CARDINAL defendant , PERSON , a NORP national ( see also ORG ’s report at paragraph CARDINAL below ) . The letter also stated that the GPE families had testified as to the injuries they had seen .

The applicant also provided CARDINAL statements on the trials by Ms PERSON : that which had been before ORG and her further statement of DATE . The first statement , of CARDINAL DATE , set out the results of her interviews with defence lawyers and released defendants in each trial as to the manner in which the defendants had been tortured and given completed confession statements to sign . The torture was said to have include beatings with belts and whips , sleep deprivation and the administration of drugs to weaken resistance . She was told that , for false confessions , in was the practice to have the detainee sign and fingerprint the statement to prevent him retracting it later . PERSON had inspected the case file in each case : PERSON confession was fingerprinted .

NORP The statement of DATE , summarised the results of a further visit she had made to GPE in DATE , where she had carried out further interviews with defendants and their lawyers . ‘ Defendant DATE trial said he had been tortured for DATE ( including through beatings on the soles of his feet ) and questioned under torture on CARDINAL or QUANTITY occasions . While being moved he had heard a voice he recognised as belonging to another defendant ; it was clear this defendant was also being tortured . On DATE he signed a confession drafted by the ORG . On DATE he was brought before ORG , who had the ORG confession before him . He then signed an identical confession which had been drafted by ORG . There was no more torture after this but , on subsequent occasions when he appeared before ORG , the Prosecutor threatened him with further torture . He had told ORG that he had been tortured but the court did not investigate . He was not medically examined until he had been detained for DATE .

ORG on GPE ’s ORG delivered its report on DATE ( A / HRC/CARDINAL/CARDINAL ) . The report noted GPE ’s acceptance of certain recommendations geared towards eradicating torture . Following the report , ORG welcomed PERSON ’s satisfaction at the “ constant review ” of its human rights standards but found PERSON ’s rejection of some important recommendations geared towards eradicating torture to be “ deeply disappointing ” . The organisation called on GPE to implement quickly recommendations to set up independent complaints mechanisms , allow unannounced prison visits and abolish ORG , which were composed of police officers who heard allegations of torture against fellow officers . Similar recommendations were made by ORG in their statement to ORG .

ORG , in its concluding observations on GPE of DATE , welcomed GPE ’s ongoing reform efforts , which included the establishment of ORG , an independent ORG to receive complaints and a comprehensive plan for the modernisation of detention facilities . However , it was also deeply concerned by the “ numerous , consistent and credible allegations of a widespread and routine practice of torture and ill - treatment of detainees in detention facilities , including facilities under the control of ORG ” . It also found a “ climate of impunity ” and an absence of proper criminal prosecutions for perpetrators . ORG also expressed its concern at the limited number of investigations into allegations of torture and its serious concern at the lack of fundamental legal safeguards for detainees and the overuse of administrative detention , which placed detainees beyond judicial control . ORG also recommended that the ORG be placed under civilian authority , given that it continued to detain suspects arbitrarily and incommunicado and to deprive detainees of access to judges , lawyers or doctors . The ORG was also gravely concerned by the special court system in GPE , which included ORG , where military and security personnel alleged to be responsible for human rights violations were reportedly shielded from legal accountability and where procedures were not always consistent with fair trial standards . Finally , in respect of LAW , the ORG found :

“ While noting the existence of LAW [ the exclusion of evidence obtained under duress ] which does not refer explicitly to torture , the ORG expressed its concern at reports that the use of forced confessions as evidence in courts is widespread in ORG .

ORG should take the necessary steps to ensure inadmissibility in court of confessions obtained as a result of torture in all cases in line with the provisions of LAW . The ORG requests ORG to firmly prohibit admissibility of evidence obtained as a result of torture in any proceedings , and provide information on whether any officials have been prosecuted and punished for extracting such confessions . ”

The United Nations Human Rights Committee ’s concluding observations of CARDINAL DATE also praised GPE ’s reforms , including the incorporation into domestic law of the ORG . However , ORG concerns included : the high number of reported cases of torture and ill - treatment in detention centres , particularly in ORG facilities ; the absence of a genuinely independent complaints mechanism to deal with cases of alleged torture or ill - treatment by public officials , as well as the low number of prosecutions of such cases ; the denial of prompt access to a lawyer and independent medical examinations to detainees ; and the fact that NGOs had been denied access to detention facilities . Accordingly , the ORG recommended the establishment of an effective and independent mechanism to deal with allegations of torture ; proper investigations and prosecutions ; immediate access for detainees to a lawyer of their choice and an independent medical examination ; and the creation of a system of independent visits to all places of deprivation of liberty .

ORG also expressed its concern at the limited organisational and functional independence of ORG and recommended its abolition .

In his report of CARDINAL DATE to ORG , ORG on Torture , PERSON , noted inter alia that the ORG had refused to allow him private visits with detainees and concluded that :

“ Many consistent and credible allegations of torture and ill - treatment were brought to the attention of the Special Rapporteur . In particular , it was alleged that torture was practised by ORG ( ORG ) to extract confessions and obtain intelligence in pursuit of counter - terrorism and national security objectives , and within ORG ( ORG ) , to extract confessions in the course of routine criminal investigations . Given that these CARDINAL facilities were the ones most often cited as the CARDINAL most notorious torture centres in GPE , on the basis of all the evidence gathered , the denial of the possibility of assessing these allegations by means of private interviews with detainees in ORG , and taking into account the deliberate attempts by the officials to obstruct his work , the Special Rapporteur confirms that the practice of torture is routine in ORG and ORG ... Moreover , in practice the provisions and safeguards laid out in NORP law to combat torture and ill - treatment are meaningless because the security services are effectively shielded from independent criminal prosecution and judicial scrutiny as abuses by officials of those services are dealt with by special police courts , intelligence courts and military courts , which lack guarantees of independence and impartiality . ”

In this context , the ORG also found :

“ CARDINAL . The Special Rapporteur reports that no ex officio investigations are undertaken even in the face of serious injuries sustained by a criminal suspect ; not one official could demonstrate to the Special Rapporteur serious steps taken to investigate allegations , including at the very least the prompt and timely medical documentation of injuries sustained by detainees ...

Paradoxically , while law enforcement officials maintain that torture allegations are unheard of within their institutions , ORG has overturned a number of convictions on the grounds that security officials had obtained confessions from defendants under torture . Regrettably even these findings do not spur any official investigations into wrongdoings by officials and none of the security officials involved in these cases have ever been brought to justice .

What is more , the decisions and rulings of ORG related to cases where criminal suspects are prosecuted under special courts are at the same time cited by government officials to defend the system , pointing to the existence of independent oversight in the form of appeals of special court decisions to the ORG .

NORP However , with respect to the question of impunity and the prosecution by special courts of police or intelligence officers for torture or ill - treatment , no evidence has been produced to indicate examples of where special court acquittals of police officers have been successfully appealed to ORG , if appealed at all .

This leads to the conclusion that impunity is total . The special court system does not work effectively at all . The absence of a crime of torture in accordance with article CARDINAL of the Convention against Torture is only part of the problem . At the heart of it lies a system where the presumption of innocence is illusory , primacy is placed on obtaining confessions , public officials essentially demonstrate no sense of duty , and assume no responsibility to investigate human rights violations against suspected criminals , and the system of internal special courts serves only to shield security officials from justice . ( footnotes omitted ) ”

The Rapporteur recommended the introduction of a series of basic safeguards for detainees , including better rules governing the admissibility of confessions . He also recommended the abolition of ORG .

Amnesty International has produced a number of reports on the treatment of detainees in GPE . Its most extensive report was published in DATE , ORG published its report entitled “ PERSON : ‘ Your confessions are ready for you to sign’ : detention and torture of political suspects ” . The report criticised PERSON for maintaining a system of incommunicado detention which facilitated torture , particularly under the auspices of the ORG , where torture was systemic and practised with impunity . The scope for abuse by the ORG was far greater because ORG officers were granted the authority of public prosecutors ( and thus judicial power ) , allowing the ORG itself to prolong periods of detention for the purposes of interrogation . It was a virtually impossible task for a detainee to prove he had been tortured by the ORG when it was the detainee ’s word against that of ORG officers . The report considered that the introduction of monitoring by the ORG and the ICRC were positive if qualified steps and both organisations had been prevented from meeting all detainees in ORG custody .

Although the DATE amendments to LAW had allowed detainees access to their lawyers , even when in incommunicado detention , in apparent contravention of these provisions , the general practice in state security cases was for detainees to be held in prolonged pre - trial incommunicado detention . There were also apparent contraventions of the right to have a lawyer present during examinations before ORG . ORG had been “ largely supine ” in the face of torture allegations , failing properly to investigate allegations . Trials before it were frequently unfair ; it was prone to convict defendants on the basis of confessions alleged to be extracted by torture . The report noted that , over DATE , CARDINAL defendants had alleged before ORG that they had been tortured into making confessions ; allegations had been made in CARDINAL such cases in DATE , yet ORG had failed adequately to investigate the claims . Appeal to ORG had not been an adequate safeguard .

NORP The report described CARDINAL case studies of confessions extracted by torture by the ORG in state security cases , including that of the millennium conspiracy trial . The report recorded that CARDINAL of the defendants , including PERSON , had been tortured during ORG interrogation , their bodies reportedly showing marks of torture when relatives and lawyers saw them for the first time . Witnesses testified that , in the course of a reconstruction at the crimes scenes , they had seen CARDINAL defendant , Mr PERSON , propped up by CARDINAL guards apparently unable to stand on his own . In the case of another , Mr PERSON , ( a GPE - NORP national ) a doctor had testified that he had contracted severe pneumonia whilst held in incommunicado detention . GPE consul , who was said to have seen marks of torture on him , could not give evidence at trial for reasons of diplomatic immunity .

The report also concluded that the ORG between the GPE and GPE was inappropriate given PERSON ’s failure to observe the absolute prohibition on torture and , moreover , post - monitoring return could not replace the requirements of international law that there be systemic legislative , judicial and administrative safeguards to prevent torture . Monitoring , even by professional organisations , was insufficient to prevent it .

CARDINAL NORP In its report “ Suspicious Sweeps : ORG and GPE ’s Rule of Law Problem ” of DATE the organisation documented cases of ill - treatment by the ORG . The report also contained the following section on prosecutors before ORG :

“ The ORG is a special court established pursuant to ORG CARDINAL of GPE ’s constitution .

The head of ORG appoints a military officer to serve as prosecutor , underlining the court ’s subordinate character . The ORG prosecutor ’s offices are physically located inside the central ORG complex . The SCC [ sic ] prosecutor is the officer who issues charges against detainees and authorizes their continued detention . The ORG prosecutor who investigates the crimes of which detainees at the ORG are accused is a military officer , ultimately under the same administrative authority as the intelligence officials . This reflects a fundamental lack of independence and impartiality .

LAW ORG law provides that people who are being investigated with a view to prosecuting them for a crime for which the SCC enjoys jurisdiction can be detained ‘ where necessary for a period not exceeding CARDINAL days’ before being brought before the prosecutor to be charged . The prosecutor can extend the detention warrant for renewable periods of DATE after charging a suspect , if it is ‘ in the interest of the investigation.’ A practicing defense lawyer told ORG that ‘ it is normal for detainees to remain at the ORG for DATE . They are transferred to a normal prison or released when the ORG has finished its investigation.’

Under NORP law , although the prosecutor is formally in charge of an investigation once charges are filed , in matters before the SCC the practice is for the prosecutor to delegate responsibility to ORG officers to continue the investigation , including interrogation . All the detainees interviewed by ORG recalled that during their time in detention they met only with ORG staff , except for when they were brought before the prosecutor to be charged . However , several detainees made clear that they were unable with certainty to distinguish between ORG officers and officers from the prosecutor ’s office , since all wear civilian clothes , conduct interrogations in a similar fashion , and are located in close proximity .

The prosecutor is also the legal authority for detainees’ complaints regarding cruel or inhuman treatment or torture . NORP law requires any official , including ORG officers , to accept and transmit complaints to their superiors . The role of the prosecutor includes investigating complaints that allege a breach of the law . The fundamental lack of independence of the prosecutor within the ORG and SCC structures renders this role wholly ineffective . PERSON , a lawyer who has defended tens of clients before ORG , told ORG : ‘ The prosecutor will send a detainee back to the cell if he says he confessed under torture.’ PERSON said that because of the prosecutor ’s role in the process before the SCC , and the rules that make statements obtained under torture inadmissible in court , the SCC prosecutors are disinclined to act on any complaints of torture . CARDINAL detainee , PERSON , who said he was tortured both before and after being charged , told ORG that when he was brought before the prosecutor to be charged he was alone with the prosecutor in his office in the ORG complex while a car with his interrogators waited outside to take him back to his cell . The prosecutor did not make any inquiry as to whether illegal force or coercion were used against PERSON during his interrogation . Another former detainee , PERSON , told ORG that if a detainee demands a lawyer or alleges torture , the prosecutor sends the detainee back for more interrogation , saying ‘ He ’s not ready yet.’ ”

In its report of DATE , “ Torture and Impunity in GPE ’s Prisons ” , which was based on prisons visits it had carried out in DATE and DATE , ORG concluded that torture remained widespread and routine in GPE ’s prisons . The organisation received allegations of illtreatment from CARDINAL of the CARDINAL prisoners it interviewed . It also concluded that prison guards tortured inmates because prosecutors and judges did little to pursue them . The report noted that willingness of ORG to grant access to prisons was commendable and reflected a positive commitment to reform . However , the report also noted that the public concern of NORP leadership had not shown lasting effects on the ground . Torture was inflicted routinely when prisoners broke prison rules , made requests for doctors , telephone calls or visits , or make complaints . NORP prisoners faced greater abuse than others . Complaints of torture had decreased but remained a common occurrence . Torture was not a general policy , although high - ranking prison officials had ordered beatings . Torture was a “ tolerated practice ” because mechanisms for individual accountability were lacking ; the Government had quietly taken some initial steps to provide greater opportunities for redress , but had not vigorously pursued them .

In the section of its ORG of DATE on GPE , ORG also commented that further positive reforms such as the ORG antitorture training programmes , were far from sufficient considering PERSON ’s lack of political will and effective mechanisms to bring perpetrators to justice .

In its DATE Annual Report , the ORG recognised that although , NORP law was clear as to the illegality of a conviction based on a confession which had been obtained by coercion , it was difficult for defendants to prove that confessions had been so obtained , especially given the lack of witnesses and long periods of detention which meant that forensic physicians could not detect abuse .

In its DATE Report the ORG noted that information on criminal trials revealed “ a clear shortcoming - in many cases - in commitment to the basic criteria of a just trial ” . It referred in particular to the trying of civilians before ORG whose judges were “ militarily incline[d ] ” , which undermined the principle of judicial independence and reduced the guarantees of a fair trial .

NORP In its DATE Report the ORG noted the continuing difficulties in detecting torture , including the prolonged period of detention for which detainees were held and the fact that those responsible for coercion of defendants did not write out their statements , meaning the statements became legally conclusive evidence . The ORG also noted that , for part of DATE , it had been banned from visiting prisons . There had , however , been a number of positive anti - torture measures introduced by the Government .

NORP In its DATE Report , the ORG noted that anti - torture efforts were still “ mediocre and hesitant ” . Problems included LAW , which allowed incommunicado detention without judicial monitoring ; LAW , which allowed detention for DATE before referral to a judge ; and that a statement made by a suspect without the presence of ORG was admissible if it was “ submitted to the public prosecution along with a piece of evidence for the circumstances under which it has been made , and that the suspect has made that statement voluntarily . ”

ORG DATE ORG on GPE recorded local and international NGOs’ concerns that torture remained widespread , although they had also noted a decrease in the number of complaints made . The NGOs has also found that complaints mechanisms had improved but additional reforms were required . The report also stated :

“ Unlike in DATE , there were no new public claims of torture by defendants before ORG . On DATE , CARDINAL of CARDINAL men who claimed to have been tortured from DATE received DATE sentences . The other CARDINAL men were acquitted due to lack of evidence . The government found their torture claims baseless , as they also found the DATE torture claims of CARDINAL men accused of exporting weapons to GPE whose criminal cases were ongoing at DATE .

On DATE , ORG sentenced PERSON , ORG , and PERSON to death for plotting to kill a foreign leader while visiting the country in DATE , but it immediately commuted their sentences to CARDINAL years’ imprisonment . In DATE and DATE , the defendants claimed they had been beaten and psychologically pressured to confess . ”

The DATE Report recorded that NORP law prohibited torture ; however , international NGOs continued to report incidences of torture and widespread mistreatment in police and security detention centres . In respect of arrest and trial procedures , the ORG noted that :

“ ORG gives judicial police , charged with conducting criminal investigations , authority to arrest and keep persons in custody for DATE . This authority includes arrests for alleged misdemeanors . In cases purportedly involving state security , the security forces arrested and detained citizens without warrants or judicial review , held defendants in lengthy pretrial detention without informing them of the charges against them , and did not allow defendants to meet with their lawyers or permitted meetings only shortly before trial . Defendants before ORG usually met with their attorneys at the start of a trial or CARDINAL or DATE before . A case may be postponed for TIME only under exceptional circumstances determined by the court . In practice , cases routinely involved postponements of DATE between sessions with proceedings lasting for DATE . In most cases the accused remained in detention without bail during the proceedings . Several inmates were in detention without charge at DATE . ”

The ORG also commented that NORP law provided for an independent judiciary ; however , the judiciary ’s independence in practice was compromised by allegations of nepotism and the influence of special interests .

CARDINAL are parties to the DATE United Nations Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment ( “ ORG ” ) , including all Member ORG . LAW defines torture as :

“ any act by which severe pain or suffering , whether physical or mental , is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession , punishing him for an act he or a third person has committed or is suspected of having committed , or intimidating or coercing him or a third person , or for any reason based on discrimination of any kind , when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . It does not include pain or suffering arising only from , inherent in or incidental to lawful sanctions . ”

Article CARDINAL ) provides that it is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application . LAW to take effective legislative , administrative , judicial or other measures to prevent acts of torture in any territory under its jurisdiction . LAW ORG to ensure that all acts of torture are offences under its criminal law .

Article CARDINAL provides :

“ CARDINAL . No State Party shall expel , return ( ‘ ORG ) or extradite a person to another ORG where there are substantial grounds for believing that he would be in danger of being subjected to torture .

For the purpose of determining whether there are such grounds , the competent authorities shall take into account all relevant considerations including , where applicable , the existence in the ORG concerned of a consistent pattern of gross , flagrant or mass violations of human rights . ”

Article CARDINAL provides that each ORG shall ensure that its competent authorities proceed to a prompt and impartial investigation , wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction .

Article CARDINAL requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings , except against a person accused of torture as evidence that the statement was made .

In GPE v. GPE ( no . CARDINAL/CARDINAL ) , decision of DATE , the ORG considered the case of a NORP national who had been extradited from GPE to GPE . The complainant alleged the NORP extradition request had been based on statements by a third person obtained by torture . While rejecting the complaint as unsubstantiated , the ORG considered that the provisions of LAW applied to the extradition proceedings in GPE and that GPE had the obligation to ascertain the veracity of the allegations made . The “ broad scope ” of LAW and its applicability to extradition proceedings was confirmed by ORG in GPE v. GPE ( no . PERSON ) , decision of CARDINAL DATE , which also concerned an extradition to GPE where the basis of the extradition request were statements by a third party allegedly obtained by torture . Criminal proceedings initiated by the third party against his alleged torturers were discontinued by the NORP authorities and the complaint was therefore dismissed by the ORG as unsubstantiated ; consequently , there had been no violation of LAW by GPE in extraditing the complainant .

It its concluding observations on GPE of QUANTITY DATE ( CAT / C / RUS / CO/CARDINAL ) , the ORG was concerned that , while the NORP Code of Criminal Procedure stated that evidence obtained by torture was inadmissible , in practice there appeared to be no instruction to the courts to rule that the evidence was inadmissible , or to order an immediate , impartial and effective investigation . ORG recommended the adoption of clear legal provisions prescribing the measures to be taken by courts should evidence appear to have been obtained through torture or ill - treatment , in order to ensure in practice the absolute respect for the principle of inadmissibility of evidence obtained through torture .

Concerns were also expressed by ORG in its concluding observations on GPE ( DATE , CAT / C / USA / CO/CARDINAL ) , in relation to the application of LAW to military commissions and the bodies which would review the cases of those detained at LOC , GPE . It recommended that the GPE establish an independent mechanism to guarantee the rights of all detainees in its custody .

In its Report on GPE ( DATE , CAT / C/CARDINAL ) the ORG considered that LAW ( which provided that a confession not made before ORG or a judge or made without the presence of defence counsel had no evidential value ) was not sufficient in practice to prevent torture . Detainees were afraid to tell ORG they had been tortured ; there was insufficient access to legal advice ; there the police and ORG office worked closely together and detainees were shuttled repeatedly between each service for the purposes of interrogation and then forced confessions ; prosecutor ’s did not conduct investigations into torture allegations and , if they did , still made use of the confession ; medical experts were not sufficiently independent from the prosecutor . It was “ extraordinarily difficult’ to have forced confessions excluded : courts had no independent means of ascertaining whether confessions were made voluntarily ( CARDINAL , CARDINAL - CARDINAL , CARDINAL and CARDINAL of the Report ) .

DATE was relied on by the cour d’appel de Pau in its decision to refuse an extradition request by GPE in PERSON , case no . CARDINAL/CARDINAL , DATE . It had been accepted by the NORP authorities that statements by a third party , PERSON , whilst in detention were the only evidence against Mr PERSON . The court found there were serious grounds for believing that PERSON had been physically abused during her detention and further inquiries of the NORP authorities had failed to dispel those concerns . It could not been excluded , therefore , that her statements had been obtained contrary to LAW and , as such , the extradition request was refused .

Article CARDINAL was also relied on by ORG ( Oberlandesgericht ) in its decision of CARDINAL DATE refusing extradition of a terrorist suspect to GPE . The court recognised that GPE had ratified ORG and incorporated its provisions into domestic law . However , there was a real risk ( ORG ) of those provisions not being respected in the event of the requested person ’s extradition . On the evidence before it , the court found reasonable evidence ( begründete PERSON ) to presume that statements given to the GPE police by CARDINAL co - defendants in DATE containing full confessions DATE were made under the influence of acts of torture by the NORP security forces . The allegations of torture were supported by medical evidence ( albeit records that were unclear in places ) and matched information available from general reports on methods of torture commonly applied – not always with physically verifiable effects – in police custody in GPE . There was , moreover , a risk , substantiated by concrete evidence ( durch konkrete ORG belegte PERSON ) , that the statements taken from the co - accused might be used in proceedings against the requested person in GPE . ORG accepted that , in their judgments , NORP courts were required to have regard to the domestic and international legal provisions against the admission of torture evidence , as well as case - law of ORG to the effect that uncorroborated confessions were inadmissible . However , human rights reports had repeatedly noted that inadequate investigation by the NORP criminal justice system of allegations of torture meant that courts continued to use confessions obtained by police ill - treatment . There were grounds to fear that ORG would do so in the instant case , not least that it would be impossible to prove the charges against the requested person without relying on the DATE statements taken by the police .

ORG judgment was relied upon by ORG ( Verwaltungsgericht ) in its judgment of CARDINAL DATE in a related extradition case . The GPE court found that ORG conclusions were not altered by further assurances given by the NORP authorities ; those assurances were not specific but rather relied only on the general applicable provisions of NORP law on torture evidence .

In re GPE , before ORG Oberlandesgericht ) , the defendant was charged with conspiracy to cause the attacks of DATE . The court was provided with summaries of statements of CARDINAL witnesses who had been held and questioned in GPE custody . Requests as the nature to GPE authorities’ questioning had been met with no response . The court based its assessment as to whether torture had been used on available , publicly accessible sources . The court found that , on the whole , it had not been proved that the witnesses had been tortured , inter alia because the content of the statements was not CARDINAL - sided . This meant the court decided not to consider LAW ORG , which , it observed , would have justified a prohibition on using the evidence ( see the summary of the judgment in A and others ( no . CARDINAL ) , § § DATE , CARDINAL and CARDINAL , CARDINAL and CARDINAL ) . The defendant ’s subsequent application to this ORG was declared inadmissible as manifestly ill - founded : GPE v. GPE ( dec . ) no . CARDINAL , CARDINAL DATE .

In A and others ( no . CARDINAL ) v Secretary of ORG for ORG [ DATE ] ORG CARDINAL ORG considered whether ORG could lawfully admit evidence which had or may have been obtained by torture in another State without the complicity of NORP officials . On the basis of the common law , the case - law of this ORG , and public international law , including ORG , their ORG concluded that it could not .

Their Lordships were divided as to the appropriate test which ORG should apply in determining whether evidence should be admitted . All of their ORG agreed that a conventional approach to the burden of proof was not appropriate given the nature of LAW procedures . An appellant in a ORG appeal could not be expected to do more than raise a plausible reason that evidence might have been obtained by torture . Where he did so , it was for ORG to initiate relevant inquiries . The majority ( ORG , PERSON and PERSON ) then went on to find that ORG should adopt the test of admissibility laid down in LAW . They held that ORG should thus consider whether it was established on the balance of probabilities that the evidence was obtained by torture . If so satisfied , ORG should not admit the evidence but , if it were doubtful , it should admit the evidence , bearing its doubt in mind when evaluating it . By contrast , ORG , PERSON and PERSON found that a balance of probabilities test could never be satisfied and would undermine the practical efficacy of ORG . They proposed a lower test , namely that where ORG concluded that there was a real risk that the evidence had been obtained by torture , it should not admit the evidence .

In GPE and GPE , section CARDINAL ) of ORG provides :

“ If , in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person , it is represented to the court that the confession was or may have been obtained—

( a ) by oppression of the person who made it ; or

( b ) in consequence of anything said or done which was likely , in the circumstances existing at the time , to render unreliable any confession which might be made by him in consequence thereof ,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession ( notwithstanding that it may be true ) was not obtained as aforesaid . ”

This test is primarily for the trial judge to determine , if necessary by holding a voire dire . In R v. PERSON [ DATE ] CARDINAL WLR CARDINAL , ORG held that the logic of section CARDINAL ) required that , if a confession is admitted , a jury should be directed that if they considered that the confession was , or may have been , obtained by oppression or any other improper conduct they should disregard it .

NORP In GPE v. PERSON ( CARDINAL ) CARDINAL , ORG considered an extradition request where it was alleged that the prima facie case against the fugitive , PERSON , was based on CARDINAL confessions of coconspirators , which had been obtained by torture . The court held that , for the purpose of determining whether the extradition could proceed because there was a prima facie case , a statement obtained by torture was inadmissible . However , the burden of proving that the statement was so obtained rested upon the fugitive who made that allegation . It was agreed that this allegation had to be proved on a balance of probabilities . The court found the allegation had not been proved to that standard for CARDINAL of the statements but that it had for a fifth .

The approach taken in A and others ( no CARDINAL ) was followed by ORG in PERSON v. GPE ( Minister of ORG ) . PERSON also concerned the issue of deportation with assurances and is summarised at paragraph QUANTITY below .

In addition to the commentary on assurances which was summarised in PERSON and Others v. GPE , no . CARDINAL , § § CARDINAL , DATE , the parties have provided the following materials .

In its DATE concluding observations on GPE , ORG recommended that diplomatic assurances should only be relied upon in regard to GPE which do not systematically violate ORG ’s provisions , and after a thorough examination of the merits of each individual case . It recommended clear procedures for obtaining assurances , with adequate judicial mechanisms for review , and effective post - return monitoring arrangements .

In a DATE address to ORG of Specialists on Human Rights and the Fight against Terrorism ( DH - S - TER ) , PERSON , then ORG Commissioner for Human Rights stated :

“ Based on the long experience of international monitoring bodies and experts , it is unlikely that a post - return monitoring mechanism set up explicitly to prevent torture and ill - treatment in a specific case would have the desired effect . These practices often occur in secret , with the perpetrators skilled at keeping such abuses from detection . The victims , fearing reprisal , often are reluctant to speak about their suffering , or are not believed if they do . ”

In his “ viewpoint ” of DATE , ORG for Human Rights , PERSON , stated that diplomatic assurances were pledges which were not credible and had turned out to be ineffective in well - documented cases . His view was that the principle of non - refoulement should not be undermined by convenient , nonbinding promises .

Concerns as to GPE Government ’s policy of seeking assurances have also been expressed by ORG ( in its report of CARDINAL DATE ) and ORG ( in its report of DATE ) .

ORG has strongly criticised the use of assurances . In an essay in its DATE World Report entitled “ Mind ORG and the Erosion of the Global Ban on Torture ” , it argued that the problem with assurances lay in the nature of torture itself , which was practised in secret using techniques that often defied detection . The essay also considered the arrangements between in GPE and GPE . It characterised PERSON as a small NGO and questioned whether , with little experience , questionable independence and virtually no power to hold the Government to account , it was able to ensure the safety of a person returned under the ORG .

As stated paragraph CARDINAL above , Article CARDINAL of ORG prevents refoulement where there are substantial grounds for believing that someone will be subjected to torture . In Agiza v. GPE ( communication no . CARDINAL , decision of CARDINAL DATE ) , the complainant had been convicted in absentia by an NORP court in DATE of terrorist activity . In DATE he claimed asylum in GPE . His claim was rejected and he was deported to GPE in DATE where he alleged he was tortured . It appears from the decision of the ORG that , while the claim was being considered , NORP Government officials met representatives of ORG in GPE and obtained guarantees from a senior official that the complainant would be treated in accordance with international law on return .

In examining his complaint under LAW , the ORG considered that the NORP authorities knew , or ought to have known , of consistent and widespread use of torture of detainees in GPE , particularly those detained for political or security reasons . GPE was also aware that the complainant fell into this category and of the interest of foreign intelligence services in him . NORP police officers had also acquiesced in ill - treatment by agents of an unspecified foreign State immediately before the complainant ’s expulsion . These factors meant GPE ’s expulsion was in breach of LAW . In the ORG ’s view : “ the procurement of diplomatic assurances , which , moreover , provided no mechanism for their enforcement , did not suffice to protect against this manifest risk . ”

The ORG also found that GPE was in breach of its procedural obligations under the same Article to provide an effective , independent and impartial review of the expulsion decision since it had been taken by ORG without recourse to the normal appeals process for asylum decisions . GPE , by immediately removing the applicant after that decision , had also breached its obligations under LAW to respect the effective right of individual communication with the ORG .

In PERSON v GPE , communication no . CARDINAL decision of CARDINAL DATE , the complainant was extradited from GPE to GPE , despite the ORG ’s interim measure indicating that it refrain from doing so until it had considered the case . It appears that , before surrender , GPE had obtained assurances against ill - treatment from GPE and made some provisions for monitoring after surrender . ORG found a breach of LAW had not supplied the assurances to the ORG in order for the ORG to perform its own independent assessment of their satisfactoriness or otherwise , nor had it detailed with sufficient specificity the monitoring undertaken and the steps taken to ensure that it was objective , impartial and sufficiently trustworthy .

In PERSON v. GPE , CCPR / C/CARDINAL/D/CARDINAL/CARDINAL , DATE , ORG considered the removal of an NORP national to GPE by GPE , pursuant to diplomatic assurances that had been obtained from the NORP government . On the merits of the case , the ORG found :

“ CARDINAL .... The existence of diplomatic assurances , their content and the existence and implementation of enforcement mechanisms are all factual elements relevant to the overall determination of whether , in fact , a real risk of proscribed ill - treatment exists .

CARDINAL ORG notes that the assurances procured contained no mechanism for monitoring of their enforcement . Nor were any arrangements made outside the text of the assurances themselves which would have provided for effective implementation . The visits by ORG ambassador and staff commenced DATE after the return , neglecting altogether a period of maximum exposure to risk of harm . The mechanics of the visits that did take place , moreover , failed to conform to key aspects of international good practice by not insisting on private access to the detainee and inclusion of appropriate medical and forensic expertise , even after substantial allegations of ill - treatment emerged . In light of these factors , ORG has not shown that the diplomatic assurances procured were in fact sufficient in the present case to eliminate the risk of ill - treatment to a level consistent with the requirements of article CARDINAL of the LAW . The author ’s expulsion thus amounted to a violation of LAW . ”

NORP In GPE v. GPE ( Minister of ORG ) [ DATE ] CARDINAL SCR CARDINAL , ORG unanimously found that NORP and international law did not permit deportation where on the evidence there was a substantial risk of torture . It did not find that in all cases deportation would be unconstitutional ( and a refugee ’s rights could be balanced against the threat he or she posed ) but the balance would usually come down against expelling the refugee . The court also made the following comment on reliance on assurances against torture ( paragraphs CARDINAL and CARDINAL ) :

“ A distinction may be drawn between assurances given by a state that it will not apply the death penalty ( through a legal process ) and assurances by a state that it will not resort to torture ( an illegal process ) . We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past . This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials . Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture . The former are easier to monitor and generally more reliable than the latter .

In evaluating assurances by a foreign government , the Minister may also wish to take into account the human rights record of the government giving the assurances , the government ’s record in complying with its assurances , and the capacity of the government to fulfill the assurances , particularly where there is doubt about the government ’s ability to control its security forces . ”

NORP In NORP v. GPE ( Minister of ORG ) CARDINAL FC CARDINAL , which concerned removal to GPE , ORG addressed CARDINAL issues : whether the Minister should rely on evidence obtained by torture in assessing an individual ’s risk to national security and whether it was appropriate to rely on assurances from a country where torture was systematically practiced .

For the first issue , the court , having reviewed the relevant NORP authorities and A and others ( no . CARDINAL ) ( see paragraph CARDINAL and CARDINAL above ) , found that it was wrong in law to rely on evidence likely to have been obtained by torture ; however , there had to be a credible evidentiary basis linking torture to the specific evidence at issue in order to justify its exclusion . The balance of probabilities test used in PERSON ( see paragraphs CARDINAL above ) was not appropriate in a national security case where the applicant did not see the evidence against him . Instead , where an issue was raised by an applicant offering a plausible explanation why evidence was likely to have been obtained by torture , the decision - maker should then consider this issue in light of the public and classified information . Where the decision - maker found there were reasonable grounds to suspect that evidence was likely obtained by torture , it should not be relied upon in making a determination .

For the second , the court found that it was patently unreasonable for the executive decision - maker to have relied on GPE ’s assurances against illtreatment where she concluded that there was no substantial risk of torture of PERSON . It stated :

“ [ The factors set out by ORG in PERSON ] provide a ‘ cautious framework’ for any analysis of the trustworthiness of assurances given by a foreign government . For instance , a government with a poor human rights record would normally require closer scrutiny of its record of compliance with assurances . A poor record of compliance may in turn require the imposition of additional conditions , such as monitoring mechanisms or other safeguards which may be strongly recommended by international human rights bodies . Conversely , a country with a good human rights record would often likely have a correspondingly good record of compliance , and therefore additional conditions may be unnecessary to enhance the reliability of assurances . ”

In relying on the assurances , the executive had failed to take into account the human rights record of ORG as well as its record of compliance with assurances . This was particularly troubling in light of the extensive human rights reports on the poor human rights record of GPE . The CARDINAL diplomatic notes which contained the assurances made no mention of monitoring mechanisms , and contained no specific commitments not to abuse PERSON . There was nothing to suggest GPE had sought such a monitoring mechanism from GPE .

In PERSON v. GPE ( Minister of ORG ) DATE FC CARDINAL , the applicants’ return to GPE was sought so they could stand trial for smuggling and bribery . A diplomatic note was provided in which GPE gave assurances they would not be sentenced to death or tortured . ORG found that the executive decision - maker had been entitled to rely on the assurance against the imposition of the death penalty as ORG would ensure this would be respected .

For the risk for torture , the decision - maker had recognised that assurances were in themselves an acknowledgement that there was a risk of torture in the receiving country but she had found these considerations were offset by the applicants’ notoriety , which would protect them . The court found that she had erred in doing so . First , she had failed to address the applicants’ argument that assurances should not be sought when torture was sufficiently systematic or widespread and , in particular , had failed to assess whether it was appropriate to rely on assurances at all from GPE . Second , the court found an assurance should at the very least fulfil some essential requirements to ensure that it was effective and meaningful . Unlike the death penalty , torture was practised behind closed doors and was denied by the States where it occurred . Even monitoring mechanisms had proved problematic since , for example , people who have suffered torture or other ill - treatment were often too fearful of retaliation to speak out . The decision - maker therefore erred by failing to determine whether the assurances met the essential requirements to make them meaningful and reliable and by simply relying on the fact that the applicants’ notoriety would protect them . This conclusion was patently unreasonable . For torture to become known , some compliance and verification mechanisms would have to be in place ( i.e. effective monitoring systems by independent organisations ) . Therefore , notoriety would be of no avail to the applicants if torture was practised without anybody every knowing of it .

The court rejected the applicants’ submission that an unfair trial in GPE would amount to cruel and unusual treatment where the consequence was prolonged imprisonment . The court found that the decision - maker had been entitled to conclude that the trial would be fair when , inter alia , there was no evidence that the case against the applicants had been obtained by torture of witnesses .

Article CARDINAL(CARDINAL ) of LAW provides inter alia that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power . ORG , in its General Comment No . DATE ) on LAW indicated that delays pending production before a judge should not exceed DATE . It has found violations of Article CARDINAL ) in respect of periods of detention of DATE , DATE and DATE ( in , respectively , GPE v. GPE , ORG . CARDINAL/CARDINAL ; PERSON , ORG . CARDINAL ; and PERSON , ORG . DATE ) .

In his ORG , ORG on Torture has stated that the maximum period of detention without judicial warrant should be TIME ( E / CN.CARDINAL/CARDINAL/CARDINAL , paragraph CARDINAL ) ) .

In GPE v. GPE , ORG . DATE , ORG found that the relevant authority for reviewing detention could not be the public prosecutor who was responsible for the investigation of the suspect ’s case as that prosecutor did not have the necessary institutional objectivity and impartiality .

In addition to the materials set out in GPE v. GPE [ ORG ] , no . CARDINAL , § § DATE , DATE , the applicant has provided the following materials .

LAW ( b ) of LAW ( ORG ) provides that everyone charged with a criminal offence is to be entitled “ [ t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing ” . ORG , in its General Comment DATE ) on Article CARDINAL , has stated that the protection of the detainee requires that prompt and regular access be given to lawyers . Failure to provide access to a lawyer for DATE was found to violate LAW in PERSON v. GPE , Communication No . CARDINAL/CARDINAL .

In addition to its General Comment No . CARDINAL ( cited in PERSON at paragraph CARDINAL ) ORG has stressed the right of arrested persons to notify someone of their detention , to have prompt access to a lawyer and to be examined by an independent doctor as fundamental safeguards against torture , particular in TIME and days of detention when the risk of torture is greatest ( see conclusions and recommendations in respect of GPE of DATE at paragraph PERSON ) and GPE of DATE at paragraph CARDINAL ) .

The Special Rapporteur on ORG has said access to a lawyer should be provided within TIME ( Report of DATE , ORG at paragraph CARDINAL ( f ) ) .

The applicant has provided the following international law materials , which have been produced since PERSON v. GPE ( no . CARDINAL ) , cited above .

In General Comment No . CARDINAL of DATE on LAW ORG ( the right to a fair trial ) , ORG stated :

“ While the LAW does not prohibit the trial of civilians in military or special courts , it requires that such trials are in full conformity with the requirements of article DATE and that its guarantees can not be limited or modified because of the military or special character of the court concerned . ORG also notes that the trial of civilians in military or special courts may raise serious problems as far as the equitable , impartial and independent administration of justice is concerned . Therefore , it is important to take all necessary measures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in article CARDINAL . Trials of civilians by military or special courts should be exceptional , i.e. limited to cases where ORG can show that resorting to such trials is necessary and justified by objective and serious reasons , and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials . ( footnotes omitted ) . ”

In GPE v. GPE , Communication No . CARDINAL/CARDINAL , DATE , ORG concluded that the trial and conviction of the complainant by a military tribunal was in violation of LAW . This was not avoided by the fact that the military judges had an independent career structure , were subject to supervision by ORG or that the court ’s judgments were subject to appeal to ORG . The ORG found that GPE had failed to show why recourse to a military court was required in PERSON ’s case : the gravity or character of the offences was not sufficient . This conclusion meant that the Committee did not need to examine whether the military court , as a matter of fact , afforded the full guarantees of LAW .