ECtHR – Al-Saadoon and Mufdhi v. the United Kingdom, Application No. 61498/08, 2 March 2010

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. The applicants contend that their transfer tot he IHT exposed them to a real risk of the death penalty, in breach of Articles 2, 3 ECHR and Article 1 of Protocol 13. 

Decision & reasoning:

The Court started its analysis by considering the developments in both treaty action and in its case law with regard to the death penalty since Soering. It notes that there has been an evolution towards the complete de facto and de jure abolition of the death penalty within the member States of the Council of Europe. In that respect the Court stated that for those States which are bound by the right under Article 1 of Protocol 13, which admits no derogation and applies in all circumstances , such a right ranks alongside Articles 2 and 3 ECHR. As such, and using State practice and case law in support, the Court finds that there is a strong indication that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Therefore the Court holds that Article 2 ECHR provides for a non-refoulement obligation, namely that there can be no extradition if a serious risk of the death penalty is established. In regards to Article 3, the Court specifies that treatment is considered to be inhuman where, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. Moreover, the Court has deemed that treatment which arouses feelings of fear, anguish and inferiority capable of humiliating and debasing a victim and treatment which adversely affects the individual’s personality constitutes degrading.

The Court subsequently considers the manner in which conflicting international obligations affect responsibility under the Convention and notes that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Moreover, it is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention. Thus the scrutiny under the Convention of a State’s party jurisdiction is not excluded, regardless of the type of rule or measure which the State is arguing compliance with.

Applying these principles to the facts of the case the Court finds that the risk of the applicants being executed has not been dispelled and indeed, from May 2006 at the very least, when the Iraqi criminal courts accepted jurisdiction over their cases, the applicants were subjected to a well-founded fear of execution. According to the Court, this, arguably, meant that the applicants were subject to intense psychological suffering, which still continues to this day. The Court underlines that the UK’s obligations under Article 2 and Article 1 Protocol 13 dictates that it should not enter into any arrangement or agreement which involved it in detaining individuals with a view to transferring them to stand trial on capital charges or in any other way subjecting individuals within its jurisdiction to a real risk of being sentenced to the death penalty and executed. The Court distances itself from examining whether applying for asylum in a diplomatic or consular premises of a third party or whether the surrender of an individual by a Contracting State’s diplomatic or consular agents could give rise to a violation of the Convention. This is because the facts of the case do not point to the applicants choosing to seeking refuge with the UK authorities. Instead, the UK forces took active steps to bring the applicants into the UK’s jurisdiction by arresting them and holding them in British-run detention facilities. Therefore the UK was under a paramount obligation to ensure that the arrest and detention did not end in a manner which would breach the applicants’ rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13.

According to the Court, the UK failed to adhere to these obligations since throughout the period in question, there were substantial grounds for believing that the applicants would face a real risk of being sentenced to death and executed. In conclusion the Court finds that the applicants psychological suffering due to the fear of execution by the Iraqi authorities violated Article 3. In light of this finding, the Court did not consider it necessary to assess whether there had also been a violation of the applicant’s rights under Article 2 of the Convention and Article 1 of Protocol No. 13.

With regards to Article 6 the Court finds that at the date of the applicants transfer it was not established that the applicants would risk a flagrantly unfair trial before the IHT.

Lastly, and in respect of Articles 34 and 13 of the Convention, the Court holds that the UK authorities had not, prior to the transfer and prior to the non-compliance with the Court’s Rule 39 interim measure, secured any binding assurance that the death penalty would not be applied . The Court therefore finds that the UK authorities had not taken all steps which could reasonably have been taken in order to comply with the interim measure taken by the Court. Indeed, the failure to comply with the interim measure and the transfer of the applicants out of the United Kingdom’s jurisdiction, without objective justification, exposed them to a serious risk of grave and irreparable harm. Similarly, the Court finds a violation of Article 13 on account that the effectiveness of any appeal to the House of Lords was unjustifiably nullified as a result of the Government’s transfer of the applicants to the Iraqi authorities.

Outcome:

The Court finds a violation of Articles 3, 13 and 34 of the Convention, finds it unnecessary to decide on whether there has been a violation of Article 2 and Article 1 Protocol 13 and does not find a violation of Article 6. 

Observations/comments:

The judgment was accompanied by a partly dissenting opinion by Judge Bratza who does not accede to the finding of the majority in respect of Articles 13 and 34. Judge Bratza, relying on Paladi v. Moldova, stated that there was an objective impediment which prevented compliance with the Rule 39 measure, namely that there was no realistic prospect of obtaining the required assurances or achieving a temporary solution at a time when the expiry of the mandate was imminent.

Other sources:

Parliamentary Assembly of the Council of Europe’s (PACE) Resolution 1560