EL HASKI CASE
ECCHR AND THE REDRESS TRUST INTERVENE IN THE CASE OF EL HASKI V BELGIUM
On June 18 2009, the European Center for Constitutional and Human
Rights, in cooperation with the British Redress Trust, intervened in the European
Convention on Human Rights (ECHR) case of El Haski v. Belgium. The case is
concerned with the use of information procured by the torture of Mr. El Haski.
Moroccan citizen El Haski was convicted to seven years of imprisonment in 2004 in Belgium for several offences committed with regard to a terrorist group based in Afghanistan and Morocco. At his conviction, witness testimony from France and Morocco was used which, according to El Haski, was procured by torture. After the judgment was confirmed in the highest Belgian court El Haski turned to the European Court of Human Rights and claimed that his right to a fair trial had been violated.
The use of evidence procured by torture is prohibited pursuant to several international agreements to which Belgium is a party. The agreement seeks 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. Professor Theo van Boven, member of ECCHR's council and former UN Special Rapporteur on Torture, notes, "...Evidence that has been procured under torture or other circumstances that amount to grave violations of human rights are not admissible under any circumstances." Adding, "No judicial proceedings must be based on such evidence."
El Haski, in his application to the European Court of Human Rights, argues that the use of evidence, which despite the prohibition was procured by torture, violates his right to a fair trial as guaranteed by Article 6 of the European Convention of Human Rights. This begs the question whether any use of evidence procured by torture automatically renders the proceedings unfair, and on whom the burden of proof, regarding an allegation, of torture lies.
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. This judgment crucially influenced the fairness of the proceedings.
Moroccan citizen El Haski was convicted to seven years of imprisonment in 2004 in Belgium for several offences committed with regard to a terrorist group based in Afghanistan and Morocco. At his conviction, witness testimony from France and Morocco was used which, according to El Haski, was procured by torture. After the judgment was confirmed in the highest Belgian court El Haski turned to the European Court of Human Rights and claimed that his right to a fair trial had been violated.
The use of evidence procured by torture is prohibited pursuant to several international agreements to which Belgium is a party. The agreement seeks 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. Professor Theo van Boven, member of ECCHR's council and former UN Special Rapporteur on Torture, notes, "...Evidence that has been procured under torture or other circumstances that amount to grave violations of human rights are not admissible under any circumstances." Adding, "No judicial proceedings must be based on such evidence."
El Haski, in his application to the European Court of Human Rights, argues that the use of evidence, which despite the prohibition was procured by torture, violates his right to a fair trial as guaranteed by Article 6 of the European Convention of Human Rights. This begs the question whether any use of evidence procured by torture automatically renders the proceedings unfair, and on whom the burden of proof, regarding an allegation, of torture lies.
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. This judgment crucially influenced the fairness of the proceedings.
