So now we know. Sort of. Five judges of the European Court of Human Rights have ruled that Abu Qatada’s case will not be heard on appeal by the court’s Grand Chamber, despite the appeal application being lodged on time.
The Court’s somewhat scanty press release reveals little:
The Panel found that the request had been submitted within the three month time-limit for such requests. However, it considered that the request should be refused.
The post-match report is as follows. Joshua Rozenberg got it right in The Guardian, Carl Gardner won the day with his excellent series of posts (although his prediction that the GC would want to hear the case was wrong) and I hedged my bets on the timing point in my latest post so I would have got it right – and wrong – either way. Those who saw me interviewed on the BBC News earlier today will not have seen the part they edited out, which was me wrongly predicting, for similar reasons to Carl Gardner, that the Grand Chamber would want to hear the appeal if the time limit issue was overcome.
I thought that the application of the law in relation to memoranda of understanding in this case was a controversial and important enough issue to merit Grand Chamber consideration. The Court accepted that torture in Jordan was “widespread and routine” (judgment, para 107) and yet still accepted the promises of the Jordanian government not to torture Abu Qatada. On the other hand, as Joshua Rozenberg rightly pointed out, the question of whether a memorandum of understanding is accepted is largely a question of fact, not law, and therefore less likely to require Grand Chamber attention.
The judges ruled that the appeal was in time, which means that the Home Office got it wrong and Abu Qatada’s lawyers got it right. However, neither have been showered in glory by the incident given how unclear the rules and previous case law was about when the appeal should have been brought. Whatever they say, neither could reasonably have been sure.
This means that the original Chamber decision is now final. Don’t forget, Abu Qatada won his case on different grounds. So, the UK can rely upon diplomatic assurances in relation to Abu Qatada not being tortured, but cannot deport Abu Qatada until it has valid assurances that evidence obtained under torture will not be used in his trial. The Government say they have these assurances, but the court will need to confirm this is the case. Which is likely to take many months, if not years.
Clear as mud
In relation to this now defunct appeal, the great shame is that the judges have declined to explain why they ruled that the case was in time. Although this was not required of them, it would have been straightforward for them to explain why they decided the issue in this way.
Just to demonstrate the inconsistency in the Court’s approach to these cases, consider the different wording in the footnotes to the most recent Abu Qatada press releases. In the 19 April 2012 press release:
During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. [my emphasis]
within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber [my emphasis]
Amazingly, these are press releases in the same case. The language is substantively different and implies a different time limit. You do not need to be a lawyer to know that “within” is not the same as “following”. This is not the way a court which decides such important issues should operate.
The position is now clearer, in the sense that all applicants can reasonably expect their 17 January decision notifications to generate a 17 April appeal deadline. But given the enormous and unusual controversy surrounding this case, in the interests of transparency and due process the Home Office could legitimately argue that the judges should – this time – have explained their reasoning.
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