ECtHR – Al-Saadoon and Mufdhi v. the United Kingdom, Application No. 61498/08, 30 June 2009 – Admissibility Decision

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Country of Applicant: 
Iraq
Date of Decision: 
30-06-2009
Citation: 
Al-Saadoon and Mufdhi v the United Kingdom, Application No. 61498/08 [2009] ECtHR
Court Name: 
European Court of Human Rights, 4th Section
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:

 

This case summary was written by Emily Claire Procter, GDL student at BPP University.

 
 

 

 
Case Law Cited: 

ECtHR - Hess v. the United Kingdom (no. 6231/73, Commission decision of 28 May 1975)

ECtHR - WM v. Denmark (no. 17392/90, Commission decision 14 October 1993)

ECtHR - X v. the United Kingdom (no. 7547/76, Commission decision 15 December 1977)

ECtHR - X v. Federal Republic of Germany, (no. 1611/62, Commission decision 25 September 1965)

Bosnia and Herzegovina - Boumediene and Others, 11 October 2002, Human Rights Chamber of Bosnia and Herzegovina

UK - R (B) v. Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344

UK - R (Al Skeini and Others) v. the Secretary of State for Defence [2004] EWHC 2911 (Admin)

United States - Rasul v. Bush (542 US 466, 29 June 2004)

ECtHR - Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A No. 240

ECtHR - Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi (Bosphorus Airways) v. Ireland [GC], Application No. 45036/98

ECtHR - Bankovic and Others v Belgium and 16 other Contracting States [GC], Application No. 52207/99

ECtHR - Loizidou v Turkey (Application no. 40/1993 and 435/514)
Other sources cited: 

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

Authentic Language: 
English
State Party: 
United Kingdom
National / Other Legislative Provisions: 
United Kingdom - CPA (Coalition Provisional Authority
in Iraq) Order No. 17 (revised) of 24 June 2004