Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

138 | PRACTITIONERS GUIDE No. 6
mate purpose of extradition could be achieved by another means which
would not involve suffering of such exceptional intensity or duration.” 439
f) Flagrant denial of justice and of the right to liberty
Both the Human Rights Committee and the European Court of Human
Rights have held that certain violations of the right to fair trial in the
country of destination can trigger the protection of non-refoulement.
The Human Rights Committee has implied that in certain cases an expulsion
could not be carried out if a violation of the right to fair trial
under Article 14 ICCPR of the person to be transferred would be a foreseeable
consequence of the deportation. 440
After having repeatedly suggested in its jurispduence that a violation
of Article 6 ECHR may arise in cases of extradition or expulsion, 441 the
European Court of Human Rights ruled for the first time that this provision
had been breached because of the existence of a risk of “suffering
a flagrant denial of justice in the requesting country”, in the case
of Othman (Abu Qatada) v. the United Kingdom. 442 The Court clarified
that “the term “flagrant denial of justice” has been synonymous with
a trial which is manifestly contrary to the provisions of Article 6 or the
principles embodied therein” 443 and pointed out to a non-exhaustive
list of examples where this violation may occur: “conviction in absentia
with no possibility subsequently to obtain a fresh determination of
the merits of the charge [. . .]; a trial which is summary in nature and
conducted with a total disregard for the rights of the defence [. . .];
detention without any access to an independent and impartial tribunal
to have the legality the detention reviewed [. . .]; deliberate and
systematic refusal of access to a lawyer, especially for an individual
detained in a foreign country [. . .]”. 444 The Court held in this case that
the admission of torture evidence in criminal proceedings constituted
a flagrant denial of justice for the purposes of Article 6 ECHR and
did “not exclude that similar considerations may apply in respect of
439 Soering v. United Kingdom, ECtHR, op. cit., fn. 295, para. 111. See also, Ilascu and
Others v. Russia and Moldova, ECtHR, op. cit., fn. 406, paras. 429–432; Al-Sadoon and
Mufti v. United Kingdom, ECtHR, Application No. 61498/08, Judgment of 2 March 2010,
paras. 123–145.
440 A.R.J. v. Australia, CCPR, op. cit., fn. 322, para. 6.15; Alzery v. Sweden, CCPR, op. cit.,
fn. 364, para. 11.9.
441 Muminov v. Russia, ECtHR, op. cit., fn. 343, para. 130; Mamatkulov and Askarov v. Turkey,
ECtHR, GC, Applications Nos. 46827/99 and 46951/99, Judgment of 4 February 2005, para.
90; Baysakov and Others v. Ukraine, ECtHR, op. cit., fn. 358, para. 61; Al-Sadoon and Mufti
v. United Kingdom, ECtHR, op. cit., fn. 439, paras. 149–150; and, Soering v. United Kingdom,
ECtHR, op. cit., fn. 295, para. 113; Z and T v. United Kingdom, ECtHR, op. cit., fn. 314,
The Law.
442 Othman (Abu Qatada) v. the United Kingdom, ECtHR, op. cit., fn. 313, para. 258.
443 Ibid., para. 259.
444 Ibid.