Mede onder verwijzing naar de uitspraak van het Europees Hof voor de rechten van de mens (hierna: EHRM) van 17 januari 2012, nr. 8139/09 (Othman/ Verenigd Koninkrijk) heeft de Grote Kamer van het EHRM in de uitspraak van 15 juni 2017, nr. 71537/14 (Harkins/Verenigd Koninkrijk) de gevallen waarin sprake is van een ‘flagrant denial of justice’, als volgt omschreven:
“62. (...) the Court recalls that the right to a fair trial in criminal proceedings, as embodied in Article 6 of the Convention, holds a prominent place in a democratic society. Consequently, it has not excluded that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country (see Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161). However, in the Court’s case-law the term “flagrant denial of justice” has been synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein (see Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006–II).
63. Although it has not yet been required to define the term more precisely, the Court has nonetheless indicated that certain forms of unfairness could amount to a “flagrant denial of justice”. These have included: conviction in absentia with no subsequent possibility of a fresh determination of the merits of the charge (see Einhorn v. France (dec.), no. 71555/01, § 33, ECHR 2001-XI; Stoichkov v. Bulgaria, no. 9808/02, § 56, 24 March 2005; and Sejdovic, cited above § 84); a trial which is summary in nature and conducted with a total disregard for the rights of the defence (see Bader and Kanbor v. Sweden, no. 13284/04, § 47, ECHR 2005-XI); detention without any access to an independent and impartial tribunal to have the legality of the detention reviewed (see Al-Moayad v. Germany (dec.), 35865/03, § 101, 20 February 2007); a deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country (ibid.); and the use in criminal proceedings of statements obtained as a result of torture of the accused or a third person in breach of Article 3 (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 267, ECHR 2012 (extracts) and El Haski v. Belgium, 649/08, § 85, 25 September 2012).
64. Consequently, “flagrant denial of justice” is a stringent test of unfairness which goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State. What is required is a breach of the principles of a fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article (see Othman (Abu Qatada), cited above, § 260). The Court has to date never found it established that an extradition would be in violation of Article 6 (in contrast to the deportation case of Othman (Abu Qatada), cited above, § 285, and the rendition cases of Al Nashiri v. Poland, no. 28761/11, § 568, 24 July 2014 and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, § 560, 24 July 2014).
65. In assessing whether this stringent test of unfairness has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see Othman (Abu Qatada), cited above, § 261).”