Diplomatic assurances will protect Abu Qatada from torture, but he cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him. There would be no violation of ECHR, art 3, and art 5 of the Convention. There would be a violation of art 6, given the real risk of the admission of evidence obtained by torture at his retrial.
This is the first time that the Court has found that an expulsion would be in violation of art 6. The decision reflects the international consensus that the use of evidence obtained through torture makes a fair trial impossible.
The judgment is notable for (1) providing an extensive analysis of the limits of using diplomatic assurances in a manner that is compatible with art 3 (2) recognising in this context that the test for preventing deportation to a criminal trial in a foreign state is no more than' a real risk' that evidence that was obtained by torture will be admitted and (3) emphasising that the right to a fair trial includes not only a prohibition on the admissibility of torture evidence, but the requirement that there will be a proper and effective examination of the issue in the receiving state.
Danny Friedman & Raza Husain QC from Matrix were involved in this case. Edward Fitzgerald QC was also involved. They were instructed by Birnberg Peirce Solicitors.
Full judgment available here. Press coverage available on The Guardian website.