A bit more Abu Qatada & human rights

It concerns me, that there appears to be a growing call for the UK to 'withdraw' from the European Convention on Human Rights, and also the European Court of Human Rights.

It is claimed by some that the European Court of Human Rights (ECHR) is 'interfering' with UK law; or that the Human Rights Act (1989) has made English law poorer. Back in August 2005 David Cameron said [...]that if Britain wanted to be able to deport terror suspects, the government should amend the human rights laws "or, if necessary, leave - perhaps temporarily - the ECHR". - BBC News.

This matter has been brought to sharp focus by the case of the 'radical' cleric Abu Qatada.

Sadly, this issue is also confused by those saying we should leave the European Union, as if they were one and the same. There follows therefore a short and brief lesson in history.

In December 1948 the UN General Assembly proclaimed the Universal Declaration of Human Rights

In May 1949 the Council Of Europe was founded by 10 countries. Sir Winston Churchill was one of the founding fathers. You can read a transcipt of the speech he made about the Council of Europe at the Winston Churchill Centre Website.

In November 1950 the European Convention for the Protection of Human Rights and Fundamental Freedoms came into being. The UK was one of the original countries to sign, with the convention coming into force in the UK in September 1953.

Under Article 19 of the above convention the ECHR was founded:

To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as “the Court”. It shall function on a permanent basis.

Also in June 1987 the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) came into force.

But let me return to the case of Abu Qatada. He arrived in the United Kingdom in September 1993, having previously fled Jordan and gone to Pakistan.

You can read a detailed account of his history in the UK in the judgement of the ECHR at Strasbourg dated 17 January 2012. (see ECHR Application no. 8139/09)

This is the judgement that has led to the recent 'confusion' about when the three month deadline came to an end.

In respect of the judgement it needs to be recognised that in the majority of the arguments put forward, the ECHR found in favour of the UK Government.

For reasons contained within the judgement the Court unanimously:

1. Declares the application admissible;
2. Holds that the applicant’s deportation to Jordan would not be in violation of Article 3 of the Convention;
3. Holds that there has been no violation of Article 3 taken in conjunction with Article 13 of the Convention;
4. Holds that the applicant’s deportation to Jordan would not be in violation of Article 5 of the Convention;
5. Holds that the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention on account of the real risk of the admission of evidence at the applicant’s retrial of obtained by torture of third persons.

In terms of it's final ruling of the real risk of the admission of evidence obtained by torture ECHR says in paragraph 285:

In the present case, the situation is different. Extensive evidence was presented by the parties in respect of the applicant’s re-trial in Jordan and thoroughly examined by the domestic courts. Moreover, in the course of the proceedings before this Court, the applicant has presented further concrete and compelling evidence that his co-defendants were tortured into providing the case against him. He has also shown that the Jordanian State Security Court has proved itself to be incapable of properly investigating allegations of torture and excluding torture evidence, as Article 15 of UNCAT requires it to do. His is not the general and unspecific complaint that was made in Mamatkulov and Askarov; instead, it is a sustained and well-founded attack on a State Security Court system that will try him in breach of one of the most fundamental norms of international criminal justice, the prohibition on the use of evidence obtained by torture. In those circumstances, and contrary to the applicants in Mamatkulov and Askarov, the present applicant has met the burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan.

Article 15 of UNCAT says:

Each State Party shall 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.

Paragraph 266 of the ECHR judgement says: ....It imposes a clear obligation on States. As the United Nations Committee Against Torture has made clear, Article 15 is broad in scope. It has been interpreted as applying to any proceedings, including, for instance, extradition proceedings...

Therefore in this respect of the burden of proof; that Abu Qatadar would not stand trial in Jordan on the basis of evidence obtained by torture, it was now up to the UK Government to demonstrate that they had received such assurances from the Government of Jordan.

The Home Secretary Theresa May is satisfied that she has received such assurances from the Government of Jordan. This was confirmed by the Special Immigration Appeal Commission (SIAC) on April 17, 2012.

SIAC said in judgement that ...in the light of existing and new factors produced by negotiations at the highest level with the Government of Jordan over the last two months, the risk that caused the Strasbourg Court to block, in so far as it could, the deportation of the appellant to Jordan has now been satisfactorily removed. Consequently, the Secretary of State has announced her intention to deport the appellant "on or about 30 th April 2012".

Meanwhile or subsequently, Abu Qatada's lawyers where preparing an appeal against the part of the ECHR's ruling that stated it was satisfied that he would not face torture if he was deported.

This is in relation to Article 3 of European Convention on Human Rights:

Prohibition of torture - No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

In their judgement of 17 January ECHR said on this matter in Paragraph 205. For the foregoing reasons the Court concludes that, on the basis of the evidence before it, the applicant’s return to Jordan would not expose him to a real risk of ill-treatment.

It is now up to the Panel of the Grand Chamber to decide as to whether the appeal was made within the 3 months time-limit, and whether to accept the request for final determination by the Grand Chamber.

Article 43 of the Convention says:

1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.
2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.
3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

This is due process as governed by national and international laws and conventions. Such laws and conventions are there to protect our fundamental human rights.

But not only our rights, but everybody's human rights. Irrespective of what we know, or what we feel about a person, they shouldn't  be treated worse than what we would expect and demand for ourselves.

And what would we expect and demand?

We would expect and demand to be treated in accordance with national and international laws, that our basic and fundamental human rights are respected and protected.

We would expect due process to be followed, which if inconvenient to the agenda of some politicians could not be changed at their whim.

Over 60 years ago great leaders including Sir Winston Churchill founded the Council of Europe, and set in law the European Convention on Human Rights.

I can see no reason that could be reasonably argued that we should now; in haste and desire for political advantage, disengage ourself from these well established international safeguards of all our human rights.

Is a Fedral Europe now the only answer?

This week we shall be remembering those who gave the ultimate sacrifice so that we can be free, be they in the first world war or second or conflicts since.

With the European Union seemingly close to collapse, I think the following speech given by a famous person from the past is one we should all be reminded of.

"I must congratulate the Assembly upon the high level maintained during this debate. Not only have the speeches been full of thoughts which have their own particular value because they have been contributed from so many angles, but also there have been successful attempts at oratory which have triumphed over the acoustic conditions which, I must tell you, are none too good and which will, I trust, be subject to development, like all the rest of our proceedings.

We are engaged in the process of creating a European unit in the world organization of the United Nations. I hope that we shall become one of several continental units which will form the pillars of the world instrument for maintaining security, and be the best guarantee of maintaining peace. I hope that in due course these continental units will be represented in the world organization collectively, rather than by individual States as in the present system, and that we shall be able to settle a great mass of our problems among ourselves in Europe before they are brought, or instead of them being brought, to the world council for decision.

We are not in any way the rival of the world organization. We are a subordinate but essential element in its ultimate structure. The progress of our first meeting has so far been encouraging. Our relations with the Committee of Ministers show a desire on both sides to reach a working harmony. That should not be difficult if we recognize clearly what our respective functions are.

We are a deliberative Assembly, and we must have full freedom of discussion on all questions except defence. We must assert our right to this freedom and we must have our own Parliamentary officers to assist us in our debates. I trust that the necessary Amendments to the Statute will be made by the Committee of Ministers on this point as the result of our first session here at Strasbourg.

But while I feel that we should insist upon full freedom of debate, and choice of subjects, we do not possess executive power, and at this stage in our development we could not possibly claim it. Our foundation by selection by the Governments of the day from the various parliaments is not such as to give us authority at this stage to take decisions. We claim, however, to make proposals. It is not for us to make decisions which would require executive authority. We may discuss European problems and try to bring about a sense of unity. We must feel our way forward and, by our good sense, build up an increasing strength and reputation.

But we must not attempt on our present electoral basis to change the powers which belong to the duly constituted national parliaments founded directly upon universal suffrage. Such a course would be premature. It would be detrimental to our long-term interests. We should, however, do our utmost to secure that these national parliaments examine and let us know their views upon any recommendation on European problems that we may make. That, I think, we may require of them. Each of us, in our respective parliaments, should take the opportunity to raise points according to the procedure which prevails.

I touch upon some of the points which are upon our agenda. I am not myself committed to a federal or any other particular solution at this stage. We must thoroughly explore all the various possibilities, and a committee, working coolly and without haste, should, in a few months, be able to show the practical steps which would be most helpful to us. I will not prejudge the work of the committee, but I hope they will remember Napoleon's saying: 'A constitution must be short and obscure.'

Until that committee reports. I think we should be well advised to reserve our judgment. I am in accord with what Mr. Morrison has said on this subject. I share his view that we would be wise to see what are the recommendations of our committee which. I hope, will sit permanently and not be broken up by our departure. To take a homely and familiar test, we may just as well see what the girl looks like before we marry her. It is to our advantage to have an opportunity of making a detailed examination of these problems.

Then there is the question of human rights, which is the second subject set down on our agenda. We attach great importance to this, Mr. President, and are glad that the obstacles to discussion by the Assembly have now been removed by the Committee of Ministers. A European Assembly forbidden to discuss human rights would indeed have been a ludicrous proposition to put to the world.

Again. I should like to see the report of the committee on this subject before we put forward our proposals to the Committee of Ministers. There is an urgency about this, because once the foundation of human rights is agreed on the lines of the decisions of the United Nations at Geneva but I trust in much shorter form we hope that a European Court might be set up, before which cases of violation of these rights in our own body of twelve nations might be brought to the judgment of the civilized world. Such a court, of course, would have no sanctions and would depend for the enforcement of its judgments on the individual decisions of the States now banded together in this Council of Europe. But these States would have subscribed beforehand to the process, and I have no doubt that the great body of public opinion in all these countries would press for action in accordance with the freely given decision.

I now come to the question of the empty seats, which was put before us by M. Andre Philip. Ten ancient capitals of Europe are behind the Iron Curtain. A large part of this continent is held in bondage. They have escaped from Nazism only to fall into the other extreme of Communism. It is like making a long and agonizing journey to leave the North Pole only to find out that, as a result, you have woken up in the South Pole. All around are only ice and snow and bitter piercing winds.

We should certainly make some provision for association with representatives of these countries, who are deprived of ordinary democratic freedom but who will surely regain it in the long march of time. This is a matter which should be carefully considered by the Assembly, and I agree with all those, and there are many, who have spoken in favour of setting aside some seats in the Assembly as a symbol of proof of our intention that the Assembly shall some day represent all Europe, or all Europe west of the Curzon Line.

I now come, sir, to the greatest and most important of all the questions that are before us. A united Europe cannot live without the help and strength of Germany. This has always been foreseen by the European Movement to whose exertions our presence here is due. At The Hague, fourteen months ago, where we resolved to press for the formation of this Assembly, a German delegation was present and was welcomed by all, especially by the representatives of France. One of the most practical reasons for pressing forward with the creation of a European Assembly was that it provided an effective means, and possibly the only effective means, of associating a democratic and free Germany with the Western democracies.

It is too early to judge the results of the German election; but so far as we can yet appreciate the results, many of us, apart from party considerations, may have felt encouraged by the evident size and validity of the poll and by the general results. We cannot part at the end of this month on the basis that we do nothing more to bring Germany into our circle until a year has passed. That year is too precious to lose. If lost, it might be lost for ever. It might not be a year, but it might be the year.

On the other hand, I am assured and here I must break the rule which Mr. Harold Macinillan laid down this morning, that the word 'impossible' must never be used again that it is physically impossible for any German Government that may emerge in the next few weeks to be represented here before we separate.

I need scarcely say that I should be very glad if a way could be found. If, however, this cannot be found, then we must draw the attention of the Committee of Ministers to Article 34 of the Statute, which says: 'The Committee of Ministers may convoke an Extraordinary Session of the Consultative Assembly at such time and place as the Committee, with the concurrence of the President of the Assembly, shall decide.' I think we must ask that an assurance shall be given to us before we separate that the Committee of Ministers will convoke an Extraordinary Session of the Consultative Assembly at the earliest suitable date.

If we could be told that we should meet again for an Extraordinary Session under this Article 34 in December or in January. I personally should be content to leave the matter in the hands of the Committee of Ministers, and even to forgo our claim for a debate upon this subject at this juncture. I would ask that we should receive an assurance that an Extraordinary Session will be convened and I appeal to you. Mr. Vice-President, personally to place yourself in communication with M. Spaak and urge him to confer with the Committee of Ministers upon this subject, so that we may have an answer and know what course we should take in the limited number of days and weeks which are at our disposal.

When we meet in the Extraordinary Session, if one is granted in December or January next, it is my hope that we shall find ourselves already joined by a German delegation similar to that of other Member States; but if this cannot be done, then will be the time for us to debate the issue in full freedom.

Mr. Vice-President. I earnestly hope that an agreement on this matter may be reached along these lines, and that we may be informed of it as soon as possible. It would enable us to avoid various serious difficulties at the present moment and would, I think, give the best chance for the future development of the European Assembly, and the best chance of making sure that the peace of Europe will be given every opportunity to consolidate itself. Such an event as the arrival in our midst of a German delegation as a result of our work here this month would certainly crown our first Session with a solid and memorable achievement, and would have a highly beneficial result in the cause of world peace and European security.

I have only ventured to deal with these particularly important practical points, and I have not attempted to speak of the sentimental and moral aspects of our work. I hope that we shall not put our trust in formulae or in machinery. There are plenty of formulae-"slogans" I think Mr. Morrison called them and, in spite of all the misfortunes which have occurred, there is still plenty of machinery in the political field.

It is by the spirit that we shall establish our force, and it is by the growth and gathering of the united sentiment of Europeanism, vocal here and listened to all over the world, that we shall succeed in taking, not executive decisions, but in taking a leading and active part in the revival of the greatest of continents which has fallen into the worst of misery.

As some of you will know that famous person was Winston Churchill, and a speech he made to the Council Of Europe at Strasbourg, August 17, 1949. Source: The Churchill Centre

At the time Winston Churchill was not sure about a federal Europe - he says "I am not myself committed to a federal or any other particular solution at this stage. " Which does not rule out support for a federal Europe in the future had he been convinced of its merits.

I think that that time has arrived and why we need now to begin a true debate about the future of Europe and whether it would be in all of your interests for closer integration and the formation of a federal Europe.

Lastly when reading the speech again, do take note of his strong support for human rights and the establishment of an European Court.