Information Note on the Court’s case-law No. 155
August-September 2012
El Haski v. Belgium - 649/08
Judgment 25.9.2012 [Section II]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Use of evidence from overseas when there was a real risk that it had been obtained by torture: violation

Facts – The applicant is a Moroccan national who travelled on various occasions between Syria, Morocco, Tunisia, Saudi Arabia and Afghanistan. He arrived in Belgium in 2004, with false identity papers, and applied for asylum. He was arrested on 1 July 2004 and charged with various offences, including participating as a leader in the activities of a terrorist group, forgery and uttering, being a leader of a criminal organisation, using a false name, and illegal entry and residence. He was convicted in 2006. The court of appeal and the Court of Cassation upheld the judgment. The convictions were based inter alia on two statements made by a witness to the authorities in Morocco, which the applicant alleged had been made under torture.
Law – Article 6 § 1: In the realm of proof that statements used in evidence had been obtained as a result of treatment contrary to Article 3, various possibilities could arise. In the event, however, that an accused person asked the domestic court to disallow statements obtained from a witness in a third country, allegedly through treatment contrary to Article 3, the reasoning developed in the Othman judgment* should be applied. Thus, when the judicial system of another State did not offer real guarantees of independent, impartial and serious examination of allegations of torture or inhuman or degrading treatment, in order for the accused to be able to request the exclusion of a statement from the case file it sufficed for him to demonstrate that there was a “real risk” that it had been obtained by such treatment. The domestic court could therefore not allow the evidence concerned without having first examined the arguments of the accused and convinced itself, in spite of those arguments, that no such risk existed.
Numerous references in reports published by the United Nations or various NGOs indicated that at the material time the Moroccan judicial system did not offer any real guarantees of independent, impartial and serious examination of allegations of torture or inhuman or degrading treatment, particularly during the investigations and proceedings that followed the Casablanca bombings of 16 May 2003. It was therefore sufficient for the applicant to demonstrate to the domestic courts that there existed a real risk that the statements had been obtained by torture or inhuman or degrading treatment. The Court considered that as the impugned statements had been made by suspects questioned in Morocco in the wake of the Casablanca bombings, the aforesaid reports established the existence of a “real risk” that they had been obtained through treatment contrary to Article 3 of the Convention. Article 6 accordingly required the domestic courts not to use them in evidence without previously having made sure, in the light of the particular facts of the case, that they had not been thus obtained. However, in refusing to disallow the statements concerned the court of appeal had simply explained that the applicant had produced no “concrete evidence” that could give rise to a “reasonable doubt” as to how the statements had been obtained.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
* Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, 17 January 2012, Information Note no. 148.

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