El Haski v Belgium (third party intervention)

Lahoucine El Haski claimed before the European Court of Human Rights (ECtHR) that his fair trial rights had been violated, on the basis that evidence used against him had been obtained under torture.


Mr El Haski, a Morrocan national, was arrested and convicted in Belgium in 2006 of (amongst other things) participation in a terrorist organisation. His conviction relied on  evidence including statements made by others in Morocco. During the proceedings in Belgium, Mr El Haski argued that these statements had been obtained through torture or ill-treatment, but despite this, the Belgian courts decided that he had received a fair trial. 

The case before the ECtHR turned on which party bore the burden of proving that statements had been obtained by torture, and to what standard. In particular, Belgium argued that Mr El Haski had failed to prove “beyond reasonable doubt” that the testimonies of the Moroccans had been obtained through torture. 


REDRESS and the European Center for Constitutional and Human Rights (ECCHR) submitted a joint third-party intervention on 16 June 2009.   

The intervention set out the definition, aim and scope of the prohibition, and the influence of the prohibition on the proceedings. Most importantly, it addressed the uncertainty in the case law regarding the burden and standard of proof for excluding evidence obtained under torture. The interveners considered that showing a “real risk” that evidence had been obtained by torture (as opposed to the stricter test of “beyond reasonable doubt” put forward by Belgium) should be sufficient on the part of a defendant. This was necessary to maintain the fairness of proceedings, even in the context of terrorism-related charges.  


European Court of Human Rights (Chamber, Second Section), 25 September 2012 

The ECtHR decided that, by admitting the statements into evidence, the Belgian courts had violated Mr El Haski’s right to fair trial under Article 6 of the European Convention on Human Rights. 

The ECtHR emphasised that the use in criminal proceedings of evidence obtained in breach of the prohibition of torture “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”. 

Where the judicial system of the State in which witness statements were taken “does not offer meaningful guarantees of an independent, impartial and serious examination of allegations of torture or inhuman and degrading treatment”, it was necessary and sufficient for the defendant seeking to exclude those statements to show that there is a “real risk” that they were obtained by torture. Taking the approach recommended by the interveners, the ECtHR decided that it would be unfair to impose any higher standard of proof on the defendant. 

The ECtHR relied on reports from international organisations and found that there was cause to doubt that the Moroccan judicial system afforded such meaningful guarantees, particularly in the context of the counterterrorism investigations and proceedings around the time the relevant statements were taken. Based on the same reports, Mr El Haski had established that there was a “real risk” that these statements had been obtained using torture or inhuman or degrading treatment prohibited by Article 3 of the European Convention on Human Rights.  

The judgment can be found here: ECtHR Chamber judgment (25 September 2012) 


Case name: El Haski v Belgium (Application no. 649/08) 

Court/Body: European Court of Human Rights 

Date intervention filed: 16 June 2009 

Current status: Decision reached 

Date of final decision: 25 September 2012 


Exclusionary rule: this prohibits the admission into legal proceedings of evidence obtained by torture or cruel, inhuman or degrading treatment or punishment. The rule is enshrined in a number of international instruments, including Article 15 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 

Burden of proof: this is the duty to produce sufficient evidence to support a legal case.  

Standard of proof: this is the level of evidence required to prove an argument in legal proceedings. This standard varies between civil and criminal cases, and between jurisdictions. Examples of standards of proof include “on the balance of probabilities” (i.e. more likely than not), “real risk” and “beyond reasonable doubt”.