ECtHR – Al-Saadoon and Mufdhi v. the United Kingdom, Application No. 61498/08, 30 June 2009 – Admissibility Decision
| Country of applicant: | Iraq |
| Court name: | European Court of Human Rights, 4th Section |
| Date of decision: | 30-06-2009 |
| Citation: | Al-Saadoon and Mufdhi v the United Kingdom, Application No. 61498/08 [2009] ECtHR |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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War crimes
Description
"(a) Grave breaches of the Geneva Conventions of 12 August 1949, as defined in Article 8(2a) of the Rome Statute of the International Criminal Court; and (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, as defined in Article 8(2b) of the Rome Statute of the International Criminal Court." |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Death penalty / Execution
Description
Capital punishment; judicially pronounced sentence of death as a legally sanctioned punishment for criminal activity. Considered to be a form of serious harm for the purposes of the granting of subsidiary protection. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
This case concerned the decision of the Court as to the admissibility of the application of two Iraqi nationals who had been detained in Iraq by the British government as criminal detainees and then transferred by it to the Iraqi authorities. The Court held that the application was partly admissible.
Facts:
The applicants, Mr. Al-Saadoon and Mr. Mufdhi, are both Iraqi nationals who joined the Ba’ath Party in 1969 and 1968 respectively. Mr. Mufdhi became the General Secretary of the Al-Zubair branch – highest rank in the province – in 2001, and Mr. Al-Saadoon became the Branch Member of the Al-Zubair branch in 1996, reporting to Mr. Mufdhi.
On 20 March 2003, a coalition of armed forces – the “MNF” – led by the United States with a large force from the United Kingdom, commenced the invasion of Iraq. This occupation came to an end on 28 June 2004 when full authority was transferred from the Coalition Provisional Authority (CPA) – which ceased to exist – to the Iraqi interim government. The MNF, including its British contingent, however remained in Iraq pursuant to requests by the Iraqi government and authorisations from the United Nations Security Council (UNSC).
In August 2004, the Iraqi National Assembly reintroduced the death penalty to the Iraqi Penal Code in respect of certain violent crimes, including murder. The UK, which had on 3 May 2002 signed Protocol No. 13 ECHR prohibiting the death penalty in all circumstances, made clear its opposition to this reintroduction.
On 23 March 2003, two British servicemen were ambushed and killed in Al-Zubair by Iraqi militia forces. Their bodies were found on 10 April 2003 buried in the ground of a government building in Al-Zubair.
The applicants were arrested in Basra by British forces, the first on 30 April 2003 and the second on 21 November 2003. They remained detained in British custody in Iraq until 31 December 2008.
The cases against the applicants concerning the deaths of the British servicemen were transferred to the Basra Criminal Court. The latter decided that, since the alleged offences constituted war crimes, the applicants’ cases should be transferred to the Iraqi High Tribunal (IHT). The IHT had been established by the Iraqi National Assembly on 9 October 2005, and given jurisdiction over a list of offences including war crimes.
On 12 June 2008 the applicants issued judicial review proceedings in England challenging, inter alia, the legality of their proposed transfer. The British government pledged not to transfer the applicants pending the determination of their claim before the English courts. The Divisional Court ruled on 19 December 2008 that the proposed transfer of the applicants to IHT custody would be lawful. The applicants appealed. The Court of Appeal, in its judgment of 30 December 2008, dismissed the appeal, denied the applicants permission to appeal to the House of Lords, and lifted the injunction which had prevented the applicants’ transfer.
On 22 December 2008, the applicants had lodged an urgent application for interim measures under Rule 39 of the ECtHR. Shortly after being informed of the ruling of the Court of Appeal on 30 December 2008, the ECtHR gave an indication under Rule 39, informing the British government that the applicants should not be removed or transferred until further notice.
On 31 December, the applicants were nonetheless transferred into physical custody of the Iraqi authorities. Since their transfer on 31 December 2008, the applicants were held at Rusafa prison. Their trial before the IHT commenced on 11 May 2009.
Decision & reasoning:
The applicants complained that their transfer to Iraqi custody by the United Kingdom constituted a breach of their rights under Articles 2, 3, 6 and 34 and Article 1 of Protocol No. 13 ECHR.
Jurisdiction within Article 1 ECHR
The Court first of all undertook to determine whether, during the period that the applicants had been in the UK’s custody, they fell within the jurisdiction of the UK within the meaning of Article 1 ECHR.
The Court found that the UK had exercised total and exclusive de facto, and subsequently de jure, control over the premises in which the applicants had been detained until 31 December 2008. Therefore it held that the applicants had remained within the UK’s jurisdiction within the meaning of Article 1 until their physical transfer to the custody of the Iraqi authorities on 31 December 2008.
Articles 2 and 3 ECHR concerning the conditions of detention and the risk of ill-treatment in the custody of the IHT
The applicants did not appeal against the Divisional Court’s findings regarding the conditions of detention at Rusafa Prison and the risk of ill-treatment there in breach of Article 3. The Court also found that the risk of extra-judicial killing in breach of Article 2 was not raised before the Divisional Court or the Court of Appeal.
The Court therefore declared inadmissible for non-exhaustion of domestic remedies this part of the application.
Articles 2, 3 and 6 and Article 1 of Protocol No. 13 ECHR concerning the alleged risks attendant on trial, conviction and sentencing by the IHT
The Court found that the determination of this part of the application should depend on an examination on the merits, and declared it admissible.
Articles 13 and 34 ECHR
The Court held that the question of the admissibility of the applicants’ complaint under Articles 13 and 34 was to be joined to the merits of the case.
Outcome:
Application declared partly admissible.
Subsequent proceedings:
The Court put further questions to the parties on the day of this judgment, in particular asking the UK government whether, since the transfer of the applicants, representations had been made to the Iraqi authorities with a view to ensuring that they would not be subjected to the death penalty if convicted. The parties’ responses to those questions were received on 21 August 2009.
The final judgment of the Court was then delivered on 2 March 2010, in which it held that the United Kingdom had violated Articles 3, 13 and 34 ECHR.
Observations/comments:
This judgment of 29 June 2009 was a decision of the Court as to the admissibility of the application, not on the merits of the application. The latter was decided by the Court in its final judgment of 2 March 2010.
Articles discussing the case:
- Helen Pidd; UK government violated human rights of two imprisoned Iraqis, court rules, The Guardian, 2 March 2010, https://www.theguardian.com/world/2010/mar/02/government-violated-human-rights-iraqis
- Adam Wagner; Death penalty victory in European court for Iraqi murder suspects, UK Human Rights Blog, 5 October 2010, https://ukhumanrightsblog.com/2010/10/05/death-penalty-victory-in-european-court-for-iraqi-murder-suspects/#more-4558
This case summary was written by Emily Claire Procter, GDL student at BPP University.
Cited National Legislation:
| Cited National Legislation |
| United Kingdom - CPA (Coalition Provisional Authority |
| in Iraq) Order No. 17 (revised) of 24 June 2004 |
Cited Cases:
| Cited Cases |
| ECtHR - Loizidou v Turkey (Application no. 40/1993 and 435/514) |
| ECtHR - Bankovic and Others v Belgium and 16 other Contracting States [GC], Application No. 52207/99 |
| ECtHR - Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi (Bosphorus Airways) v. Ireland [GC], Application No. 45036/98 |
| ECtHR - Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A No. 240 |
| United States - Rasul v. Bush (542 US 466, 29 June 2004) |
| UK - R (Al Skeini and Others) v. the Secretary of State for Defence [2004] EWHC 2911 (Admin) |
| ECtHR - X v. Federal Republic of Germany, (no. 1611/62, Commission decision 25 September 1965) |
| ECtHR - X v. the United Kingdom (no. 7547/76, Commission decision 15 December 1977) |
| ECtHR - WM v. Denmark (no. 17392/90, Commission decision 14 October 1993) |
| ECtHR - Hess v. the United Kingdom (no. 6231/73, Commission decision of 28 May 1975) |
Follower Cases:
| Follower Cases |
| ECtHR – Al-Skeini and Others v. the United Kingdom, Application No. 55721/07, 7 July 2011 |
Other sources:
United Nations Human Rights Committee, Chitat Ng v. Canada, Communication No. 469/1991, U.N. Doc. CCPR/C/49/D/469/1991 (7 January 1994)
United Nations Human Rights Committee, Roger Judge v. Canada, Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (20 October 2003)
United Nations, International Covenant on Civil and Political Rights.
Article 41 of the Vienna Convention on Diplomatic Relations, 1961