174
02.03.2010

Press release issued by the Registrar

Chamber judgment

 (application no. 61498/08)

TRANSFERRING TWO IRAQI NATIONALS FROM UNITED KINGDOM DETENTION FACILITIES TO THE IRAQI AUTHORITIES BREACHED THE CONVENTION

Unanimously: Violation of Article 3 (prohibition of inhuman or degrading treatment) and by six votes to one: Violation of Articles 13 (right to an effective remedy) and 34 (right to individual petition)
of the European Convention on Human Rights

Principal facts

The case concerned the complaint by the applicants, accused of involvement in the murder of two British soldiers shortly after the invasion of Iraq in 2003, that their transfer by the British authorities into Iraqi custody put them at real risk of execution by hanging.

The applicants, Faisal Attiyah Nassar Khalaf Hussain Al-Saadoon and Khalef Hussain Mufdhi, are Iraqi nationals who were born in 1952 and 1950. They are Sunni Muslims from southern Iraq and former senior officials of the Ba’ath party. They are currently detained in Rusafa Prison, near Baghdad.

Following the invasion of Iraq by an international coalition of armed forces on 20 March 2003, the applicants were arrested by British forces and detained in British-run detention facilities as they were suspected, among other things, of having orchestrated violence against the coalition forces. In October 2004 the UK’s Royal Military Police concluded that applicants had been involved in the deaths of two British soldiers, Staff Sergeant Cullingworth and Sapper Allsopp, ambushed and murdered in southern Iraq on 23 March 2003.

In August 2004 the Iraqi National Assembly reintroduced the death penalty to the Iraqi Penal Code in respect of certain violent crimes, including murder and certain war crimes.

In December 2005 the British authorities decided to refer the murder case against the applicants to the Iraqi criminal courts. In May 2006 the applicants appeared before the Basra Criminal Court on charges of murder and war crimes. The Basra Criminal Court issued arrest warrants against them and made an order authorising their continued detention by the British Army in Basra. Subsequently, the Basra Criminal Court decided that the allegations against the applicants constituted war crimes and therefore fell within the jurisdiction of the Iraqi High Tribunal (“IHT”: a court set up under Iraqi national law, to try Iraqi nationals or residents accused of genocide, crimes against humanity and war crimes allegedly committed during the period 17 July 1968 to 1 May 2003). The case was transferred to the IHT which, on 27 December 2007, formally requested the British forces to transfer the applicants into its custody; repeated requests were made to that effect until May 2008.

On 12 June 2008, the applicants brought judicial review proceedings in England challenging, among other things, the legality of their transfer. The case was heard by the English Divisional Court which, on 19 December 2008, declared the proposed transfer lawful. The court found that since the applicants were held in a British military detention facility, they were within the jurisdiction of the UK as provided by Article 1 (obligation to respect human rights) of the European Convention of Human Rights. Nonetheless, the court held that under public international law the UK was obliged to surrender the applicants unless there was clear evidence that the receiving State intended to subject them to treatment so harsh as to constitute a crime against humanity. It found no substantial grounds for believing there to be a real risk that, on being transferred, a trial against the applicants would be flagrantly unfair or that they would face torture and/or inhuman and degrading treatment. While, on the other hand there was a real risk that the death penalty would be applied if the applicants were surrendered to the Iraqi authorities, the death penalty in itself was not prohibited by international law.

The applicants’ appeal was refused by the Court of Appeal on 30 December 2008. The Court of Appeal found that there was a real risk that the applicants would be executed if transferred. It concluded, however, that the UK was not exercising jurisdiction because it was detaining the applicants on Iraqi territory and on the orders of the Iraqi courts. The Convention did not, therefore, apply and the UK had to respect Iraqi sovereignty and transfer the applicants.

Immediately after that decision, the applicants applied to the European Court of Human Rights for an interim measure under Rule 39 of its Rules of Court to prevent the British authorities making the transfer. On 30 December 2008 the Court indicated to the UK Government that the applicants should not be removed or transferred from their custody until further notice. The following day the UK Government informed the Court that, principally because the UN Mandate, which authorised the role of British forces in arrest, detention and imprisonment tasks in Iraq, was due to expire at midnight on 31 December 2008, exceptionally they could not comply with the measure indicated by the Court and that they had transferred the applicants to Iraqi custody earlier that day.

On 16 February 2009 the applicants were refused leave to appeal by the House of Lords.

The applicants’ trial before the IHT started in May 2009 and ended in September 2009 with a verdict cancelling the charges against them and ordering their immediate release. Upon an appeal by the prosecutor, the Iraqi Court of Cassation remitted the case for further investigation by the Iraqi authorities and for a retrial. The applicants remain in custody.

Complaints, procedure and composition of the Court

The applicants complained about their transfer to Iraqi custody. They relied on Article 2 (right to life), Article 3 (prohibition of torture and or inhuman and degrading treatment), Article 6 (right to a fair trial) and Article 1 of Protocol No. 13 (abolition of the death penalty). They also complained about the fact that they were transferred to the Iraqi authorities despite the Court’s indication under Rule 39 of its Rules of Court, in breach of Articles 13 (right to an effective remedy) and 34 (right of individual petition).

The application was lodged with the European Court of Human Rights on 22 December 2008.

Judgment was given by a Chamber of seven judges, composed as follows:

Lech Garlicki (Poland), President,
Nicolas Bratza (the United Kingdom),
Giovanni Bonello (Malta),
Ljiljana Mijović (Bosnia and Herzegovina)
Ján Šikuta (Slovakia),
Mihai Poalelungi (Moldova),
Nebojša Vučinić (Montenegro), Judges,

and LawrenceEarlySection Registrar.

Decision of the Court

Jurisdiction

The Court adopted on 30 July 2009 a decision on the admissibility of the applicants’ complaints in which it considered that the United Kingdom authorities had had total and exclusive control, first through the exercise of military force and then by law, over the detention facilities in which the applicants were held. The Court found that the applicants had been within the UK’s jurisdiction and had remained so until their physical transfer to the custody of the Iraqi authorities on 31 December 2008.

The death penalty as inhuman and degrading treatment

The Court emphasised that 60 years ago, when the Convention was drafted, the death penalty had not been considered to violate international standards. However, there had been a subsequent evolution towards its complete abolition, in law and in practice, within all the Member States of the Council of Europe. Two Protocols to the Convention had thus entered into force, abolishing the death penalty in time of war (Protocol 6) and in all circumstances (Protocol 13), and the United Kingdom had ratified them both. All but two Member States had signed Protocol 13 and all but three States which had signed it had ratified it. This demonstrated that Article 2 of the Convention had been amended so as to prohibit the death penalty in all circumstances. The Court concluded therefore that the death penalty, which involved the deliberate and premeditated destruction of a human being by the State authorities, causing physical pain and intense psychological suffering as a result of the foreknowledge of death, could be considered inhuman and degrading and, as such, contrary to Article 3 of the Convention.

The Court accepted the findings of the national courts which had concluded, shortly before the physical transfer took place, that there were substantial grounds for believing there to be a real risk of the applicants’ being condemned to the death penalty and executed. It further observed that the Iraqi authorities had still not given any binding assurance that they would not execute the applicants. Moreover, while it was impossible to predict the outcome of the new investigation and trial ordered by the Iraqi courts, there were still substantial grounds for believing that the applicants would run a real risk of being sentenced to death if tried and convicted by an Iraqi court.

The death penalty had been reintroduced in Iraq in August 2004. Nonetheless, and without obtaining any assurance from the Iraqi authorities, the UK authorities had decided in December 2005 to refer the applicants’ case to the Iraqi courts and in May 2006 proceedings commenced in the Basra Criminal Court. The Court considered that from that date at least the applicants had been subjected to a well-founded fear of execution, giving rise to a significant degree of mental suffering, which must have intensified and continued from the date they were physically transferred into Iraqi custody.

The Government had argued that they had no option but to respect Iraqi sovereignty and transfer the applicants, who were Iraqi nationals held on Iraqi territory, to the custody of the Iraqi courts when so requested. However, the Court was not satisfied that the need to secure the applicants’ rights under the Convention inevitably required a breach of Iraqi sovereignty. It did not appear that any real attempt was made to negotiate with the Iraqi authorities to prevent the risk of the death penalty. Moreover, the evidence showed that the Iraqi prosecutors initially had “cold feet” about bringing the case themselves, because the matter was “so high profile”. This could have provided an opportunity to seek the consent of the Iraqi Government to an alternative arrangement involving, for example, the applicants being tried by a UK court, either in Iraq or in the UK. It does not appear that any such solution was ever sought.

Consequently, in view of the above, the Court concluded that the applicants had been subjected to inhuman and degrading treatment, in violation of Article 3.

Fair trial

The Court accepted the national courts’ finding that, at the date of transfer, it had not been established that the applicants risked a flagrantly unfair trial before the IHT. Now that the trial had taken place, there was no evidence before the Court to cast doubt on that assessment. It followed that there had been no violation of Article 6.

Right to individual petition and to an effective remedy

The Government had not satisfied the Court that they had taken all reasonable steps, or indeed any steps, to seek to comply with the Court’s Rule 39 indication not to transfer the applicants to Iraqi custody. They had not informed the Court, for example, of any attempt made after the Court’s indication and before the transfer took place to explain the situation to the Iraqi authorities or to reach a temporary solution which would have safeguarded the applicants’ rights until the Court had completed its examination of the case. The failure to comply with the Court’s indication and the transfer of the applicants out of the United Kingdom’s jurisdiction had exposed them to a serious risk of grave and irreparable harm and had unjustifiably nullified the effectiveness of any appeal to the House of Lords. The Court therefore found violations of Articles 13 and 34 of the Convention.

Just satisfaction

Under Article 41 (just satisfaction) of the Convention, the Court held that the finding of a violation constituted sufficient just satisfaction for the non-pecuniary damage suffered by the applicants and awarded the applicants jointly 40,000 euros (EUR) for costs and expenses.

Judge Bratza expressed a partly dissenting opinion, which is annexed to the judgment.

***

The decision is available (in English) today on the Court’s Internet site (). Judgment will be delivered at a later date.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.