A panel of five judges meets at the European Court of Human Rights today to decide whether or not to grant Abu Qatada’s request that his case be referred to the Grand Chamber of the Court.
You’ll remember that following the Chamber’s ruling in January (saying his deportation to Jordan would not breach the ban on torture, because assurances giving to the UK by Jordan could be relied on; but would breach the right to a fair trial, because of the risk he’d be tried using evidence obtained by torture) Abu Qatada appealed on 17 April – day late according to Theresa May, but just in time according to the Court’s staff, who I think are right.
So: how will the panel approach today’s decision? Should they grant the referral? Will they?
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.
So the case must not only be in time: it must be exceptional. The Court’s practice note on article 43 referrals tells us that only about 5% of referral requests are actually granted. But Article 43 also makes clear that the request will be accepted if the case raises a serious question of interpretation or application of the Convention, or a serious issue of general importance – and I think this case does so. This is, in my view, an exceptional enough case to be referred.
I don’t think it involves a serious question of interpretation of the Convention – but it does involve serious issues of its application, which are of general importance.
The Court’s practice note glosses article 43 further by saying that cases that will be sent to the Grand Chamber are likely to belong to the following categories:
(a) Cases affecting case-law consistency, when a Chamber judgment significantly departs from the previous case-law;
(b) cases which do not disclose inconsistency with the previous case-law, but which present an opportunity for development of the case-law where this is considered appropriate;
(c) cases in which it’s felt that clarification of the relevant basic principles is needed;
(d) cases in which the Grand Chamber may be called upon to re-examine a significant development of the case-law by the Chamber, where the Panel feels confirmation (or rejection) is needed from the Grand Chamber. This is notably the case when the Chamber has found a violation of the Convention in circumstances which, in the past, had not systematically led to such a conclusion;
(e) cases concerning “new” issues touching on a relatively new field of law which has not previously been examined by the Court, and/or which is socially and politically sensitive;
(f) cases raising a “serious issue of general importance” at European or global level;
(g) “high-profile” cases, due to the complexity of the legal issues they raise, the serious implications for the state concerned, the identity of the applicant or from the fact that the application concerns matters which are at the centre of a sensitive national, European or global debate.
Neither (a) nor (b) applies in this case; it’s doubtful that (c) applies here, either.
I think though that (d) does apply, since this is the first time that deportation has been found in breach of the article 6 because the potential use of torture evidence risks a flagrant denial of justice. It might be objected that Abu Qatada won on this aspect of the case – what he wants reviewed is the decision that his deportation would not breach the ban on torture. But that decision in itself is arguably a significant development, and what matters under article 43 is that the case is exceptional one: it’s not clear that the Panel is limited to considering only those aspects of the Chamber judgment to which Abu Qatada objects. In my view it can look at the case as a whole.
And undoubtedly this case falls into both categories (f) and (g).
For all those reasons – and because the referral request was in my view in good time – I think the Panel should accept the referral today. I expect they will.
Two more points. Normally I don’t think these decisions are publicly announced on the day – typically the Court issues a press release some days or even weeks after a meeting like this, announcing the decisions made on a number of cases. But given the interest interest in this case, I doubt we’ll be in the dark long after this decision is made.
Secondly, the Court’s practice is not to give reasons for their decision, either way. If the request is refused, in other words, that will not tell us the Court agrees with Theresa May on the timing issue. It’s more reasonable to infer that they disagree with her if they do accept the referral – but even that isn’t 100% obvious. It’s not that I think the Court has a “discretion” to accept a later request.
I do, though, think it’s conceivable that the Panel might see the timing issue as in itself an important legal point that requires clarification, and feel that it can be “rolled up” with the merits and considered by the Grand Chamber.