(Suspected) terrorists
II. RELEVANT DOMESTIC LAW AND PRACTICE 46. Articles 139 and 440 of the Belgian Criminal Code read as follows: Article 139 “A terrorist group shall be defined as an organised association of more than two people, established on a lasting basis and engaged in concerted action with a view to the commission of terrorist offences covered by Article 137. An organisation whose real purpose is solely of a political, trade union or philanthropic, philosophical or religious nature, or which solely pursues any other legitimate aim, cannot, as such, be considered a terrorist group within the meaning of paragraph 1.” Article 140 “1. Anyone who participates in an activity of a terrorist group, including by providing information or material resources to that group or through any form of financing of a terrorist group’s activity, in the knowledge that such participation aids the commission of an offence by the terrorist group, shall be liable to a prison sentence of between five and ten years and to a fine of between one hundred euros and five thousand euros. 2. Leaders of terrorist groups shall be liable to a prison sentence of between fifteen and twenty years and to a fine of between one thousand euros and two hundred thousand euros.” 47. Section 13 of the Law of 9 December 2004 on international mutual legal assistance in criminal matters provides that: It shall be prohibited to use in Belgian criminal proceedings any evidence: 1 o that has been illegally obtained in a foreign country, where the illegality: – arises, under the law of the State in which the evidence has been gathered, from the breach of a procedural requirement prescribed on pain of nullity; – vitiates the reliability of the evidence; 2 o or of which the use violates the right to a fair trial.” ... THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 58. The applicant complained that the domestic courts had principally and essentially based his conviction for participation in a terrorist organisation on evidence that was vitiated and obtained in conditions that were incompatible with the requirements of the Convention. Alleging a violation of his right to a fair trial, he relied on Article 6 of the Convention, of which paragraphs 1 and 3 (d) read as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” “3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” ... Secondly, he complained that, in finding that he had participated in a leading capacity in the activities of the Moroccan Islamic Fighting Group, the Brussels Court of Appeal, in breach of section 13 of the Belgian Mutual Legal Assistance Act of 9 December 2004, had based its findings decisively on statements that had been obtained in proceedings to which he was not a party, which had taken place in France and Morocco. ... Those statements, he claimed, had been made as a result of treatment in breach of Article 3 of the Convention. ... A. The parties’ submissions 1. The Government ... 63. Thirdly, the Government asked the Court to dismiss the applicant’s argument that the Belgian courts had invoked statements that had been taken in France and Morocco in conditions that breached Article 3 of the Convention. The Government did not dispute the fact that, according to the Court’s case-law, the use by a court of evidence thus obtained would entail a violation of Article 6 § 1, even if the admission of such evidence was not decisive in securing a conviction. In addition, referring in this connection to the judgment of the United Kingdom House of Lords in the case of A. and Others v. Secretary of State for the Home Department (no. 2) and to Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 10 December 1984, they took the view that this principle should also apply where the breach of Article 3 had not been committed by the respondent State. 64. Relying on that same judgment and provision, and also on the El Motassadeq judgment of 14 June 2005 of the Hanseatic Court of Appeal of Hamburg and on the Court’s case-law, the Government nevertheless argued that the exclusionary rule did not apply unless it was clear that the statements in question had been obtained by torture. In their opinion, it was incumbent upon the applicant first to adduce evidence in support of his allegation. In that connection, a mere suspicion was insufficient: the standard of proof “beyond reasonable doubt” applied, bearing in mind that such proof might “follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact”; the applicant must at least be able to allege “on arguable grounds” that such evidence had been obtained as a result of torture. The Government emphasised that the argument whereby an item of evidence had to be excluded if there was a “real risk” that it had been obtained by torture could not be upheld, in the light of the wording of Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They further observed that the “test of real risk” was in fact the test applied by the Court when it examined allegations of a potential violation of Article 3 in the event of the extradition or expulsion of an individual to a State where he might be subjected to treatment or punishment in breach of that Article. In cases such as the present, it was not a matter of determining whether there was a risk of such treatment, but whether such treatment had actually been inflicted on those individuals whose testimony was at issue. 65. In the Government’s submission, even supposing that the applicant’s allegations concerning the interviews carried out in France were “arguable”, within the meaning of the Court’s case-law, the Court of Appeal had found, after a detailed examination of the available documents, that it not been established that the French authorities had breached Article 3. The court had begun by finding, in the light of the documents from the French proceedings, that all the procedural safeguards and the rights of the persons interviewed had been respected (the right to be immediately informed of the “complaint” and of one’s rights in police custody, the right to request an examination by a doctor, the right to have a lawyer, etc.). It had then found that the conditions in which the impugned interviews had taken place were acceptable and that the allegations of violence, intimidation and torture or inhuman and degrading treatment on the part of the police officers at the time of arrest and questioning, judging from the statements in question and from the file, lacked credibility. It had moreover taken the view that it did not suffice for the applicant to refer to general considerations contained in reports by NGOs on the functioning of the French judicial system in order to show that there had been a breach of Article 3 of the Convention. The Government further pointed out that the French witnesses had not brought proceedings before the Court for a violation of that provision. As regards the testimony taken in Morocco, the Government pointed out that the Court of Appeal had found that the applicant had not adduced the slightest evidence of a violation of Article 3. They draw attention to the following findings: “... the fact of citing in general terms various reports of human rights organisations – admittedly respectable ones – does not adduce any concrete evidence that would be capable of giving rise in the present case to the above-mentioned reasonable doubt as to the violence, torture or inhuman or degrading treatment that was allegedly inflicted on the individuals interviewed in Morocco ...”; and “... the contradictions allegedly contained in those statements, according to defence counsel’s argument, are not capable of justifying the claim that the individuals who were interviewed and/or tried in Morocco were subjected to any inhuman and degrading treatment or torture”. 66. The Government were of the view that the authorities could not be criticised for failing to carry out an investigation into allegations that were so poorly substantiated. They added that, before the Court, as before the domestic courts, the applicant had failed to adduce any concrete evidence to show that the impugned statements had been taken using torture and inhuman or degrading treatment. 2. The applicant ... 69. As regards the application in the present case of the rule that evidence obtained by means contrary to Article 3 must be excluded, the applicant was of the view that it also applied to evidence obtained by such means in a foreign country, if the object and purpose of the Convention were not to be meaningless. He had reached this conclusion in particular from the wording of Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, from the case-law of the Committee against Torture and from the above-cited A. and others judgment of the House of Lords. 70. The applicant further argued that the Government had been wrong to conclude from the above-cited Article 15 and the A. and others judgment that the burden of proof lay fully with him to show that the impugned statements had been obtained by a means contrary to Article 3. He observed that the standard adopted by the House of Lords in A. and others consisted in ascertaining whether it was “established, by means of such diligent enquiries into the sources that it [was] practicable to carry out and on a balance of probabilities, that the information [had been] obtained under torture”, and that the highest British court seemed to have concluded that the reports of humanitarian organisations did not suffice to show the “established nature” of torture sustained by a complainant. In his view, having regard to the purpose of the Convention and the need for effective protection of fundamental rights, the burden of proof that lay with a defendant should not, however, be “inaccessible”: it should be considered sufficient for him or her to show the existence of a “real risk” that the evidence had been obtained by torture, and to produce for that purpose the reports of respectable NGOs indicating that, in the country in question, torture was practised systematically. To require a defendant to provide more concrete information when he or she had no means of investigating in a foreign country would be asking the impossible. In other words, the defendant should merely be required to show the “likelihood” of what he or she alleged. The applicant claimed that, for his part, he had made such a demonstration. 71. As regards the statements obtained in Morocco, the applicant claimed that it was not in dispute that this country had been severely criticised by both governmental and non-governmental organisations for torture and ill-treatment inflicted systematically on persons charged with acts of terrorism after the Casablanca bombings in May 2003. The individuals who had given the statements incriminating the applicant had precisely been prosecuted in that context and during that period. He then pointed out that, before the Belgian courts, he had relied on the following evidence to show the existence of torture: - Reports condemning a systematic practice of ill-treatment of suspects in the months following the Casablanca bombings, in particular the Human Rights Watch report of 2005 (entitled “Morocco’s Truth Commission: Honoring Past Victims during an Uncertain Present”), which noted that, according to various human rights organisations, over 2,000 suspected Islamists had been detained, many in secret detention, for days or even weeks, and had been subjected by the police to various forms of ill-treatment, and in some cases torture, in order to extract confessions. - The fact that the individuals in question had complained of acts of torture and inhuman or degrading treatment – in particular a certain N., who had apparently been arrested in Mauritania and had been held in secret detention for several months – and that the Moroccan authorities had not carried out any investigation in response to those allegations. - The fact that they had been held in police custody for twelve days, under the Terrorism Act of 28 May 2003, applied retroactively. - The fact that the Moroccan proceedings had taken place in a hurried manner, without the use of conventional methods of investigation. ... 73. In the applicant’s submission, in view of the likelihood of his allegations relating to the statements taken in Morocco and France, Article 6 of the Convention obliged the Belgian courts either to carry out investigations into those allegations – the principle of the prohibition of torture triggering an obligation to investigate – or to exclude the evidence in question. B. Observations of third-party interveners 1. The United Kingdom Government 74. Referring to the Court’s case-law, the United Kingdom Government invited the Court to confirm the existence, for the purposes of Article 6 of the Convention, of an “exclusionary rule” on statements that had been obtained directly by torture, with the result that a violation of this Article should be found where the rule applied, irrespective of the overall fairness of the proceedings. However, referring in particular to the decision in Sharkunov and Mezentsev v. Russia (no. 75330/01, 2 July 2009), they further asked the Court to confirm that the alleged torture had to be established “beyond reasonable doubt”, and that, while general evidence of the human rights situation in the country from where the statement had been obtained might well be sufficient to trigger an inquiry by the domestic court into the provenance of the statement in issue, this would rarely be sufficient to establish “beyond reasonable doubt” that a particular statement had been obtained using torture: evidence of a direct causal link would in principle be necessary. They added that the standard of proof “beyond reasonable doubt” also corresponded to the requirement of Article 15 of the UN Convention against Torture, under which it had to be “established” that the statement in question had been made as a result of torture for the exclusionary rule to apply. That standard was moreover consistent with the approach taken by other courts and tribunals, in particular the United Kingdom House of Lords in A. and Others v. Secretary of State for the Home Department (no. 2). 75. The United Kingdom Government further observed that it was clear from the Court’s case-law – in particular the judgments in Jalloh v. Germany ([GC], no. 54810/00, § 105, ECHR 2006 ‑ IX) and Ashot Harutyunyan v. Armenia (no. 34334/04, 15 June 2010) – that the exclusionary rule did not apply where the domestic court was left with a doubt as to whether the statement had been obtained by torture or where it concluded that the ill-treatment did not reach the necessary threshold of severity to be classified as “torture”. It emphasised in this context that the above-mentioned Article 15 applied only in relation to torture and not to cases of other prohibited ill-treatment. In their view, in any event, the domestic courts retained in such cases some discretion as to the admissibility of and assessment of weight to be given to such a statement, to be exercised bearing in mind the special status of Article 3 and the fact that the use of a statement obtained as a result of a violation of one of the core rights guaranteed by the Convention raised serious issues as to the fairness of the proceedings. The fairness of the proceedings had then to be assessed on a case-by-case basis, considering the proceedings as a whole. 2. NGOs European Center for Constitutional and Human Rights and REDRESS 76. The third-party interveners pointed out that the “exclusionary rule”, which prohibited the admission of evidence obtained by torture or cruel, inhuman or degrading treatment or punishment, was enshrined in a number of international instruments: Article 12 of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Article 10 of the Inter-American Convention to Prevent and Punish Torture, the Robben Island Guidelines for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, adopted by the African Commission on Human and People’s Rights, and the rules of procedure of the ad hoc international criminal tribunals and of the International Criminal Court. They added that the Human Rights Committee and the Committee against Torture had repeatedly emphasised the importance of the exclusionary rule, with the latter taking the view that it was an inherent part of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. 77. In the submission of the third-party interveners, the exclusionary rule applies to evidence obtained not only by torture but also by other cruel, inhuman or degrading treatment or punishment. Whilst Article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and Article 10 of the Inter-American Convention to Prevent and Punish Torture refer only to torture, Article 12 of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment refers to other forms of prohibited ill-treatment; the position of the Human Rights Committee and the Committee against Torture is, moreover, consistent with the latter. In addition, the rule extends both to confessions by the person against whom evidence is being sought and to witness statements of third parties. Referring to the above-cited Jalloh and Ashot Harutyunyan judgments, they pointed out that it was clear from the Court’s case-law that the use of evidence obtained by torture automatically rendered the trial unfair. They further drew attention to the Court’s finding in Jalloh (§ 106) that where the evidence in question had been obtained by treatment contrary to Article 3 not amounting to torture, the impact on the fairness of the proceedings would depend on the circumstances of each individual case. They took the view, however, that the Court had left open the question whether the use of evidence obtained by other prohibited ill-treatment automatically rendered a trial unfair (ibid., § 107). 78. The third-party interveners observed that the Committee against Torture had considered that the forum State was under an obligation to ensure that statements admitted in evidence in any proceedings had not been obtained by torture (they referred in this connection to the Committee’s decision in G.K. v. Switzerland ). They indicated that, whilst there was little international jurisprudence on the burden and standard of proof, it was quite well established that, where a party to proceedings alleged that evidence had been obtained by torture, the forum State had a duty to investigate the circumstances in which it had been obtained; if that proved to be the case, the evidence had to be excluded. The jurisprudence was inconsistent, however, as to the extent to which an individual had to sustain his or her allegations. Referring to the decisions in Halimi-Nedzibi v. Austria, Encarnación Blanco Abad v. Spain, P.E. v. France and G.K. v. Switzerland, they observed that the Committee against Torture seemed to require the author to demonstrate that his or her allegations were “well founded” – adding, however, that some legal writers took the view, in the light of that jurisprudence, that it was sufficient for the alleged victim to submit “some evidence” of ill-treatment – and that this view was supported by domestic case-law. In the United States of America, the US District Court for Columbia had merely verified that the petitioning detainees had made “sufficient allegations” ( Re Guantánamo Detainee Cases, 31 January 2005); in Canada, the Supreme Court of British Columbia had looked at the “persuasive nature of the allegations” ( India v. Singh, 8 May 1996); and the Supreme Court of the Netherlands had examined whether the allegations were “plausible” ( Hoge Raad, judgment no. 103.094, 1 October 1996). In the submission of the third-party interveners, most of the case-law indicated that the burden of proof could not rest with either the individual or the State alone (they referred, inter alia, to the Human Rights Committee’s decision in Saimijon and Bazarov v. Uzbekistan ). They said that this had also been the approach of the House of Lords in A. and others, cited above. 79. The third-party interveners further observed that under Article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment it had to be “established” that the statement in question had been obtained by torture for the exclusionary rule to apply, and that similar wording was used in Article 10 of the Inter-American Convention to Prevent and Punish Torture and in Article 12 of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as in the jurisprudence of the Committee against Torture and the Human Rights Committee. They added that in the case of A. and others, cited above, the House of Lords had considered the meaning of “established” in the context of the above-mentioned Article 15: the majority (four Law Lords out of seven) had interpreted it as requiring evidence to be excluded where it was “more likely than not” that torture had been used to obtain it; in the same vein, the Hamburg Court of Appeal, in its El Motassadeq judgment, cited above, had used certain testimonies despite the fact that serious doubts remained as to how they had been obtained. The interveners were, however, convinced by the opinion of the minority of Law Lords in the above-cited A. and others judgment, to the effect that the exclusionary rule had to apply where there was a “real risk” that evidence had been obtained by torture. In their view, the position of the majority of the Law Lords called into question the sharing of the burden of proof between the State and the defendant, by imposing on the latter too high a burden that in most cases would be impossible to meet. In their view, the fact that the evidence in question was intended to be used against someone accused of terrorism-related offences could not justify such a shift; they referred to the Court’s finding in Hulki Güneş v. Turkey (no. 28490/95, ECHR 2003-VII) that the need to combat terrorism could not justify a restriction on the very essence of the rights of the defence. This had also been the approach adopted by the Spanish Supreme Court in its judgment of 20 July 2006, reversing the conviction of Hamed Abderrahaman Ahmed on the ground that, because of the disrespect for the fundamental rights of the Guantánamo detainees and for due process safeguards, any act carried out in the Guantánamo context had to be declared completely invalid and as such inexistent. They observed that, similarly, the 2009 report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights had expressed concern that, due to the international dimension of recent terrorism attacks, there had been cases where the prosecution had sought to rely on statements of the accused or witnesses obtained abroad under conditions that cast doubt on their reliability. They emphasised that the prevention of torture or other ill-treatment of detainees could only be effectively safeguarded if the judiciary responded urgently and effectively when any allegations concerning such ill-treatment were brought to their attention. C. The Court’s assessment ... 2. Merits (a) General principles 81. The Court reiterates that its duty, pursuant to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see, among other authorities, Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports of Judgments and Decisions 1998 ‑ IV; Heglas v. the Czech Republic, no. 5935/02, § 84, 1 March 2007; and Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010). 82. It is not, therefore, the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002 ‑ IX; and Gäfgen, cited above, § 163). 83. In determining whether the proceedings as a whole were fair, regard must also be had as to whether the rights of the defence have been respected. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Khan, cited above, §§ 35 and 37; Allan, cited above, § 43; Jalloh, cited above, § 96; and Gäfgen, cited above, § 164). In this connection, the Court further attaches weight to whether the evidence in question was or was not decisive for the outcome of the criminal proceedings (see Gäfgen, cited above, § 164). 84. As to the examination of the nature of the Convention violation found, the Court reiterates that the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, and in particular to the question of respect for the applicant’s defence rights and the quality and importance of the evidence in question (ibid.). 85. However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003; Jalloh, cited above, §§ 99 and 104; Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006; Harutyunyan, cited above, § 63; and Gäfgen, cited above, § 165). Therefore, the use in criminal proceedings of statements obtained as a result of a violation of Article 3 – irrespective of the classification of the treatment as torture, inhuman or degrading treatment – renders the proceedings as a whole automatically unfair, in breach of Article 6 (see Gäfgen, cited above, §§ 166-167 and 173). This also holds true for the use of real evidence obtained as a direct result of acts of torture (ibid., § 173); the admission of such evidence obtained as a result of an act qualified as inhuman treatment in breach of Article 3, but falling short of torture, will only breach Article 6, however, if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence (ibid., § 178). The Court is of the view that these principles apply not only where the victim of the treatment contrary to Article 3 is the actual defendant but also where third parties are concerned. It would point out in this connection that it has already had occasion to indicate in Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, §§ 263 and 267, ECHR 2012), with regard more specifically to a flagrant denial of justice, that the use in a trial of evidence obtained by torture would amount to such a denial even where the person from whom the evidence had been thus extracted was a third party. 86. The Court examined the issue of evidence in the above-cited Othman case, where it examined, in particular, the question whether the deportation of a Jordanian national to his country of origin, where he claimed he would face conviction on the basis of statements by third parties that had been extracted under torture and would thus be the victim of a flagrant denial of justice, would entail a violation of Article 6 of the Convention. In response to the United Kingdom Government’s argument that the applicant had to establish “beyond reasonable doubt” that the evidence in issue had been obtained by torture, it took the view that it would be unfair to impose on the applicant a burden of proof that went beyond the demonstration of a “real risk” that the evidence in question had been thus obtained (ibid., § 273). The Court set out three reasons why it would be unfair to impose any higher burden of proof on the applicant. First, the Court did not consider that the balance of probabilities test, as applied by the majority of the House of Lords in the above-mentioned A. and others (no. 2) judgment, was appropriate, as that case had concerned not criminal proceedings but proceedings before the Special Immigration Appeals Commission (SIAC) to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. It further noted that, in any event, the majority of the House of Lords in that judgment had found that the balance of probabilities test was for SIAC itself to apply and that an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture (ibid., § 274). Second, the Court did not consider that the Canadian and German case-law, which had been submitted by the United Kingdom Government (in particular the Singh and El Motassadeq judgments, cited also by the parties in the present case), provided any support for their position (ibid., § 275). Third, describing this as the most important factor, the Court found that it was necessary to have due regard for the special difficulties in proving allegations of torture. It emphasised that torture was uniquely evil, both for its barbarity and its corrupting effect on the criminal process. It was practised in secret, often by experienced interrogators who were skilled at ensuring that it left no visible signs on the victim. All too frequently, those who were charged with ensuring that torture did not occur – courts, prosecutors and medical personnel – were complicit in its concealment. The Court observed that, in a criminal justice system where the courts were independent of the executive, where cases were prosecuted impartially, and where allegations of torture were conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture. However, in a criminal justice system which was complicit in the very practices which it existed to prevent, such a standard of proof was wholly inappropriate (ibid., § 276). 87. As to the standard of proof for the application of the exclusionary rule in respect of evidence allegedly obtained as a result of treatment contrary to Article 3, a number of situations may arise. Firstly, such treatment may be imputed to the authorities of the forum State or to those of a third State and the victim may be the actual defendant or a third party. Furthermore, in some cases the Court itself (see, for example, Levinta v. Moldova, no. 17332/03, 16 December 2008), the courts of the forum State (see, for example, the Harutyunyan judgment, cited above) or the courts of the third State have confirmed the veracity and nature of the alleged ill-treatment; in other cases there has been no such judicial decision. 88. The Court will not proceed to examine each of those situations. It is sufficient in the present case for it to observe that, at least in a case where a defendant asks the domestic court to exclude statements obtained in a third State as a result, in his submission, of treatment contrary to Article 3 inflicted on another individual, it is appropriate to follow the approach set out in the Othman judgment, cited above. Accordingly, in any event, where the judicial system of the third State in question does not offer meaningful guarantees of an independent, impartial and serious examination of allegations of torture or inhuman and degrading treatment, it will be necessary and sufficient for the complainant, if the exclusionary rule is to be invoked on the basis of Article 6 § 1 of the Convention, to show that there is a “real risk” that the impugned statement was thus obtained. It would be unfair to impose any higher burden of proof on him. 89. The domestic court may not then admit the impugned evidence without having first examined the defendant’s arguments concerning it and without being satisfied that, notwithstanding those arguments, no such risk obtains. This is inherent in a court’s responsibility to ensure that those appearing before it are guaranteed a fair hearing, and in particular to verify that the fairness of the proceedings is not undermined by the conditions in which the evidence on which it relies has been obtained (see, mutatis mutandis, Stojkovic v. France and Belgium, no. 25303/08, 7 April 2011, § 55). (b) Application to the present case 90. The Court finds it appropriate primarily to examine the applicant’s allegation that, in violation of Article 6 of the Convention, the Belgian courts, in the context of the criminal proceedings against him, had admitted in evidence certain statements by third parties that had been obtained in Morocco using treatment prohibited by Article 3 of the Convention. 91. It would first observe that it has been established that the domestic courts refused to apply the exclusionary rule to statements of third parties obtained in Morocco by the Moroccan authorities in the course of criminal proceedings in that country, as can be seen from the reasoning of the Brussels Court of Appeal’s judgment of 19 January 2007 (see paragraphs 36 and 40 above). This has not been disputed by the Government. 92. It remains to be determined, in the circumstances of the case, whether the Moroccan judicial system afforded, at the material time, meaningful guarantees of an independent, impartial and serious examination of allegations of torture or inhuman or degrading treatment, and, if not, whether there was a “real risk” that the impugned statements might have been obtained as a result of such means (see paragraph 88 above). 93. In the light of the plentiful information before it, the Court has cause to doubt that the Moroccan judicial system did afford such guarantees at the material time. It is at least apparent from that information that this was not the case at the time of the circumstances in question, in so far as the allegations concerned acts committed in the context of general counter-terrorism measures, and, more specifically, in that of the investigations and proceedings that followed the Casablanca bombings of 16 May 2003. 94. The Court observes, in this connection, that in its report of 28 November 2005 (see paragraph 53 above) – to which the applicant referred before the Court, as before the domestic courts – Human Rights Watch explained that individuals tried in that context had been denied a fair hearing, that the courts refused, in particular, to order medical examinations of those who claimed to have been tortured, that it was not aware of any prosecution of officials suspected of torture, and that “[o]verall, the pattern of continuing abuses, criticized by various human rights organizations as well as by the U.N. Human Rights Committee, [CCPR/CO/82/MAR] show[ed] that security forces continue[d] to operate in a climate of impunity and disrespect for the law, and that the executive branch continue[d] to exercise considerable influence over the courts”. Similarly, the FIDH report of February 2004, to which the previous report referred (see paragraph 54 above), commented in particular on the hurried nature of the judicial investigation phase and the failure to comply with safeguards enshrined in Moroccan law, such as the right to have a lawyer and to see a doctor, before both the public prosecutor and the investigating judge. It emphasised that the trial courts had systematically dismissed objections based on alleged problems at the police custody and judicial investigation stages and that no application for a medical expert’s report for the purposes of substantiating ill-treatment allegations had been accepted. Amnesty International made the same observation in its report of 24 June 2004 (see paragraph 55 above) – mentioned in the above-cited report of Human Rights Watch. It reported, in particular, that the judicial authorities appeared to have repeatedly dismissed allegations of torture or ill-treatment, without ordering investigations or medical examinations. Amnesty International further observed that statements obtained by torture or ill-treatment were often used in court as evidence to obtain convictions, even though the accused generally retracted them in the courtroom. It added that during their trials many accused challenged, on the ground that it had been obtained by duress, evidence against them taken from statements made by others who had been arrested and detained on similar charges, and that their requests for confrontation with witnesses were denied by the courts on a systematic basis. 95. In the same vein, the United Nations Committee against Torture and the United Nations Human Rights Committee, in reports covering the relevant period (paragraph 50-51 above), referred to numerous allegations of ill-treatment imputed to agents of the State and expressed concern about the impunity that they enjoyed. The former also noted that there was no provision of criminal law prohibiting a statement obtained under torture from being invoked as evidence in any proceedings, whilst the latter was concerned that the independence of the judiciary was not fully guaranteed. 96. The Court concludes from the foregoing that, in order to seek the application of the exclusionary rule as regards statements taken in Morocco by the Moroccan authorities, it was sufficient for the applicant to demonstrate before the domestic court that there was a “real risk” that they had been obtained using torture or inhuman or degrading treatment. 97. In this connection, the Court notes that the applicant alleged before the domestic courts that the impugned statements emanated from individuals who were suspected of involvement in the Casablanca bombings of 16 May 2003, and who had been interrogated in Morocco in the context of the ensuing investigations and proceedings. He argued that the country had been harshly criticised by governmental and non-governmental organisations for acts of torture and ill-treatment inflicted systematically on individuals arrested after those events, referring in particular to the above-mentioned report of Human Rights Watch. He explained that those who had given the statements in question had complained of being subjected to acts of torture and inhuman or degrading treatment. He added that the Moroccan authorities had not carried out an investigation into those allegations. He further argued that the Moroccan proceedings had been conducted in a hurried manner. The Brussels Court of Appeal took the view, however, that by merely “citing in general terms” various reports of human rights organisations, the applicant had not adduced any concrete evidence that would be capable of giving rise in the present case to “reasonable doubt” as to the violence, torture or inhuman or degrading treatment that had allegedly been inflicted on the individuals interviewed in Morocco (see paragraph 36 above). 98. The Court, for its part, takes that view that since those statements emanated from suspects interrogated in Morocco in the context of investigations and proceedings following the Casablanca bombings of 16 May 2003, the above-mentioned reports established the existence of a “real risk” that they had been obtained using treatment contrary to Article 3 of the Convention. It can be seen from those reports that ill-treatment for the purposes of extracting confessions was widely practised against such suspects. In 2004 the United Nations Human Rights Committee thus expressed concern about the numerous allegations of torture and ill-treatment against detainees in Morocco, as did the United Nations Committee against Torture, which specifically noted the increase in those allegations that implicated the National Surveillance Directorate (see paragraphs 50 and 52 above). In its final observations on the fourth periodic report of Morocco – adopted, however, after the domestic courts had given a final decision in the applicant’s case –, the Committee against Torture reiterated that concern, mentioning more particularly the use of such treatment during interrogations of individuals suspected of terrorism with the aim of extracting confessions from them. It further referred to allegations that pointed to a consistent pattern, “whereby suspects [were] arrested by plain-clothes officers who [did] not clearly identify themselves, taken in for questioning and then held in secret detention facilities, which in practice amount[ed] to incommunicado detention. The suspects [were] not officially registered and [were] subjected to torture and other cruel, inhuman or degrading treatment or punishment. They [were] held in these conditions for weeks at a time without being brought before a judge and without judicial supervision. Their families [were] not notified of their arrest, of their movements or of their whereabouts until such time as they [were] transferred to police custody in order to sign confessions that they ha[d] made under torture. It [was ] only then that they [were] officially registered and their cases [were] processed through the regular justice system on the basis of falsified dates and information ...” (see paragraph 51 above). In addition, it can be seen from the report of Human Rights Watch that many of the suspected Islamists who were detained in the weeks following the Casablanca bombings “were held for days or weeks in secret detention, where the police subjected them to various forms of illtreatment and in some cases to torture in order to extract confessions” (see paragraph 53 above). The FIDH reported numerous cases of arbitrary detention in secret centres, where the interrogations were “carried out in breach of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations in 1975, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”. It pointed out that at the Témara centre, where most prisoners were taken after their arrest, ill-treatment, violence and torture were common practice. The cells, situated in the basement, were lit day and night and when they moved around, as well as during interrogation, which often lasted a very long time, the suspects were blindfolded. It added that insults and blows were commonplace, with prisoners under interrogation sometimes being stripped naked, and that several cases of electrical torture and rape had been reported. A number of prisoners had signed statements under torture. The FIDH also reproduced various detailed testimonies describing the poor conditions of detention and mentioning, in particular, beatings, blows, rape, cigarette burns, insults, humiliations, spitting, threats, blackmail, placement in solitary confinement, endless questioning, sleep deprivation and denial of medical care (see paragraph 55 above). Amnesty International gave a similar description of treatment inflicted on detainees at the Témara centre. It indicated that many former prisoners had complained of being tortured or ill-treated during interrogation sessions, in an attempt to extract confessions or information from them or to force them to sign or thumb-print statements which they rejected or denied. It added that in many cases the statements had been signed or thumb-printed after the detainees had been transferred from Témara to a police station, where they were threatened with being returned to Témara and with further torture should they refuse to comply (see paragraph 55 above). 99. In the Court’s view, the foregoing information, which emanates from diverse, objective and concurring sources, establishes that there was, at the material time, a “real risk” that the impugned statements had been obtained in Morocco using treatment prohibited by Article 3 of the Convention. Article 6 of the Convention thus required the domestic courts not to admit them in evidence, unless they had first verified, in view of elements specific to the case, that they had not been obtained in such manner. As indicated above, in dismissing the applicant’s request for the exclusion of those statements, the Brussels Court of Appeal merely found that he had not adduced any “concrete evidence” that would be capable of raising “reasonable doubt” in this connection. This is sufficient for the Court to find that there has been a violation of Article 6 in the present case, without it being necessary to ascertain whether, as the applicant contends, that provision has also been breached for other reasons. ...
The Court held that there had been a violation of Article 6 (right to a fair trial) of the Convention. Unlike the Belgian courts, the Court found that because of the context in which the statements had been taken, in order to make the criminal court exclude them as evidence it sufficed for the applicant to demonstrate the existence of a “real risk” that the statements concerned had been obtained using treatment contrary to Article 3. Article 6 of the Convention therefore required the domestic courts not to admit them as evidence without first making sure they had not been obtained by such methods. However, in rejecting the applicant’s request to exclude the statements the Court of Appeal simply noted that he had provided no “concrete proof” capable of shedding “reasonable doubt” on the evidence.