Extraordinary rendition, forced labour, and evidence obtained by torture – Antoine Buyse

16 October 2012 by

Building on Abu Qatada

There are three cases, among the many decided by the Court in the past few weeks, which I would like to highlight. They deal with testimony potentially obtained through torture, forced labour and extraordinary rendition respectively. 

The first is the case of El Haski v. Belgium (available only in French). It deals with a terrorist suspect against whom evidence obtained in Morocco during legal proceedings there (following the 2003 Casablanca bombings) was used in court in Belgium. It was unclear whether such evidence was in fact obtained by means of torture. The Court held that it was sufficient for exclusion of such evidence from trial in an ECHR state party if a suspect could show that there was a “real risk” that such evidence had been obtained by treatment contrary to Article 3. The case builds on the recent Othman (Abu Qatada) v. the United Kingdom judgment, from January of this year. In this case, such a real risk existed. The refusal by Belgian courts to exclude the evidence thus led to a violation of the right to a fair trial (Article 6 ECHR).

The second is the case of C.N. and V. v. France (available only in French). After Siliadin (2005) and Rantsev (2010, see my earlier post here) this is the third important case to breathe life into the often neglected Article 4 of the Convention, which prohibits slavery, servitude and forced labour. C.N. and V were two orphans from Burundi brought to France by their uncle and aunt in order to take care of them. In practice, they were both made to work in their household for long hours and under the threat of being sent back to Burundi. The case is interesting on several points.

First, it offered the Court the possibility to clarify how servitude can be differentiated from forced labour, the former being an aggravated form of the latter. The Court explained that servitude is characterised by  the feeling of the victim that her or his situation cannot be changed, supported by objective elements (para. 91 of the judgment).

Secondly, the Court distinguished the situation of the two sisters in detail. While both had to work, the younger sister was allowed to go to school, whereas the older was given no opportunity to develop herself or to establish social ties beyond the house. Only the situation of the older sister fell within the scope of Article 4 ECHR. The Court found that although France had complied with its positive obligation to conduct an effective investigation (uncle and aunt were brought to justice eventually), it had violated its positive obligation to put in place an adequate legislative and administrative framework to combat forced labour and servitude effectively (in parallel to the older Siliadin case, also directed against France). The facts dated from before 2003, when the penal code was changed.

Finally, the third case is Abdulkhakov v. Russia, one of the very rare cases where a form of extraordinary rendition yields a judgment of the European Court. The case concerns the kidnapping in Moscow and transfer to Tajikistan of an Uzbek refugee, who was sought in Uzbekistan for  involvement in extremist activities. Although the Russian authorities denied any involvement, the Court found that what happened to the applicant could not have occurred without the knowledge or involvement of the state. Thus it held Russia to account. Of course it is notable here that the rendition was towards a non-ECHR state party (Tajikistan).

The Court concluded that this amounted to a violation of the right to individual petition, since the illegal transfer in effect frustrated the purpose of an interim measure imposed on Russia earlier not to transfer him. In addition, the Court also found a violation of Article 3 ECHR, since Russia had not made any assessment of whether the applicant would face a real risk of torture in Tajikistan, all the more so since the transfer was conducted secretly and outside nay legal framework which could have provided safeguards.

As the Court reiterated “any extra-judicial transfer or extraordinary rendition, by its deliberate circumvention of due process, is an absolute negation of the rule of law and the values protected by the Convention. It therefore amounts to a violation of the most basic rights guaranteed by the Convention” (para. 156).

More extraordinary rendition cases are in the pipeline, even more directly implicating ECHR state parties. The Court has asked Poland and Romania in two different cases to provide answers about possible secret CIA detention centres on their territories (this means the cases have been communicated, with questions, to the states concerned). For more information, see the website of the Open Society Justice Initiative.

This post by Dr Antoine Buyse first appeared on the ECHR Blog and is reproduced here with permission and thanks

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;

  1. Rosemary Cantwell says:

    16 October 2012

    Dear Mr Buyse

    It would appear that different countries have different mores and different laws.

    Could it happen in the UK?

    We live in such extraordinary times.

    Thank you very much for your bringing this to our attention.

    Best wishes

    Rosemary Cantwell

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: