On 18 June 2009, ECCHR, in cooperation with the British human rights organization REDRESS, intervened in the European Court of Human Rights (ECHR) case of El Haski vs. Belgium. The case is concerned with the use of evidence procured by the torture of Mr. El Haski in his criminal trial on terrorism related charges in Belgium. The European Court of Human Rights decided on 25 September 2012 that fair trial rules have been breached and ordered Belgium to pay compensation.
Moroccan citizen El Haski was convicted to seven years of imprisonment in 2004 in Belgium for several offences committed with regard to an alleged terrorist group based in Afghanistan and Morocco. At his conviction, witness testimony from Morocco was used which, according to El Haski, was procured by torture.
The use of evidence procured by torture is prohibited pursuant to several international agreements to which Belgium is a party. The agreements seek to remove incentive for national investigating authorities to engage in torture, and to uphold the rights of the accused and the integrity of the legal procedure. The European Court of Human Rights decided that an accused only has to prove a "real risk" that evidence has been obtained under torture or inhuman treatment. A higher standard, such as Belgian courts and the UK, intervening in the case, require with the prove of torture "beyond reasonable doubt," violates the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights.
The intervention made by the ECCHR and REDRESS addresses the definition, aim and scope of the prohibition, the burden of proof, and the influence of the prohibition on the proceedings. It is contended that a real risk of torture has to be sufficient to trigger the prohibition, and that the accused cannot duly be expected to procure evidence, given the common involvement of secrecy issues and a lack of access to information regarding the acts of states and repressive regimes. The human rights court followed this argumentation.
Hintergrundbericht: Fall El Haski – Keine Verwertung von erfolterten Beweisen
Entscheidungsanmerkung: "Reales Risiko" der Folter oder unmenschlichen Behandlung reicht für ein Beweisverwertungsverbot
Press Release: Human Rights Court criticizes use of alleged torture evidence in Belgium (27 September 2012)
Amicus Curiae Brief: El-Haski
An amicus curiae brief is a written submission to a court in which an amicus curiae (literally a “friend of the court:” a person or organization who/which is not party to the proceedings) can set out legal arguments and recommendations in a given case.
An amicus curiae brief is a written submission to a court in which an amicus curiae (literally a “friend of the court:” a person or organization who/which is not party to the proceedings) can set out legal arguments and recommendations in a given case.
The law is clear: torture is prohibited under any circumstances. Whoever commits, orders or approves acts of torture should be prosecuted. This is set out in the UN Convention against Torture which has been ratified by 146 states.
Failure to punish and acknowledge torture adds to the trauma of survivors and their families; individual as well as collective traumas persist. The cycle of torture, impunity and further injustice cannot be broken without addressing these crimes, including through the law. This is why – where torture is used as part of a policy – it is important to hold not only low-ranking perpetrators of torture accountable but also their superiors as well as political and military decision makers – including those from politically and economically powerful states.
In the fight against torture, ECCHR works with survivors and partner organizations to pursue a variety of legal avenues. In some cases, it might be appropriate to bring a case to the International Criminal Court, as with the torture and mistreatment of detainees by British forces in Iraq. ECCHR also takes cases based on the principle of universal jurisdiction in third states like Germany, Switzerland, Austria and Sweden, filing complaints against those responsible for the US torture program in the so-called "war on terror," against the Bahraini Attorney General, and against senior officials within the Syrian intelligence services.
The law is clear: torture is prohibited under any circumstances. Whoever commits, orders or approves acts of torture should be prosecuted. This is set out in the UN Convention against Torture which has been ratified by 146 states.
Failure to punish and acknowledge torture adds to the trauma of survivors and their families; individual as well as collective traumas persist. The cycle of torture, impunity and further injustice cannot be broken without addressing these crimes, including through the law. This is why – where torture is used as part of a policy – it is important to hold not only low-ranking perpetrators of torture accountable but also their superiors as well as political and military decision makers – including those from politically and economically powerful states.
In the fight against torture, ECCHR works with survivors and partner organizations to pursue a variety of legal avenues. In some cases, it might be appropriate to bring a case to the International Criminal Court, as with the torture and mistreatment of detainees by British forces in Iraq. ECCHR also takes cases based on the principle of universal jurisdiction in third states like Germany, Switzerland, Austria and Sweden, filing complaints against those responsible for the US torture program in the so-called "war on terror," against the Bahraini Attorney General, and against senior officials within the Syrian intelligence services.
