Published on 9 October 2023
FOURTH SECTION
Application no. 46571/22
Munadhil ABDULAAL NASER and Others
against Denmark
lodged on 29 September 2022
communicated on 19 September 2023
SUBJECT MATTER OF THE CASE
The applicants are twenty-three Iraqi nationals who, in 2014, instituted compensation proceedings against the Danish Ministry of Defence, submitting that they had been subjected to treatment contrary to Article 3 of the Convention by Danish soldiers in Iraq around 25 November 2004 close to Basra (Operation Green Desert).
By a judgment of 15 June 2018 the High Court partially found for eighteen of the applicants (A-R) and granted each of them 30,000 DKK. It found against the five other applicants (S–X). The High Court found it established that the operation had been led by the Iraqi Government; that the Danish forces’ role had been limited to making a ring around Basra in order to hinder anyone from fleeing and that they had complied with this mandate; and that British forces had been responsible for the arrests and detentions, either at a military base run by the British forces or by transporting the prisoners to the prison in Basra, controlled by the Iraqi military or police. The planning of the action and its execution could not be criticised. Nevertheless, having found it established that eighteen of the twenty-three applicants had been subjected to inhuman treatment either during transfer to prison or in the prison, which was controlled by the Iraqi Government, the High Court found that the Danish forces should have known that there was a general risk that the applicants would be subjected to inhuman treatment there. The High Court dismissed the complaints under Article 6 of the Convention.
On appeal, by judgment of 31 May 2022 the Supreme Court acquitted the Ministry of Defence in so far as concerned the eighteen applicants (A-R) and upheld the judgment in so far as concerned the five applicants (S–X). The Supreme Court found that Denmark had had no jurisdiction under Article 1 of the Convention over the Iraqi parties, and that therefore there had been no breach of Article 3 of the Convention. Moreover, the relevant Danish forces had no knowledge of the prison in question; they were not aware that some of the Iraqi detainees would be transferred thereto and they had no concrete and real information or assumption that the Iraqi detainees, including the applicants, would be subjected to treatment contrary to Article 3. The Supreme Court also dismissed the complaints under Article 6 of the Convention.
Before the Court the applicants complain under Articles 1, 3, 6 and 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the facts of which the applicants complain in the present case fall within the jurisdiction of Denmark (see, for example, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 132-137, ECHR 2011; Belozorov v. Russia and Ukraine, no. 43611/02, §§ 83 to 89, 15 October 2015)?
2. Have the applicants been subjected to treatment in breach of Article 3 of the Convention and for which the Danish State was responsible?
3. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
4. Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
5. Did the applicants have access to a court, under Article 6 of the Convention, and an effective domestic remedy at their disposal for their complaint under Article 3, as required by Article 13 of the Convention?
APPENDIX
List of applicants:
Application no. 46571/22
No.
Applicant’s Name
Year of birth
Nationality
1.
Munadhil ABDULAAL NASER
1960
Iraqi
2.
Assad OTHMANN IMRAN
1978
Iraqi
3.
Dhurgam MUAYAD HASAN
1975
Iraqi
4.
Raad ABDULHAMEER HAMED
1977
Iraqi
5.
Naji ISMAEL KAAYEM
1977
Iraqi
6.
AbdulraheemQASIM MECHMAN
1962
Iraqi
7.
Abdullah KHALAF IBRAHIM
1974
Iraqi
8.
Abdullreda HASAN ABDULLREDA
1958
Iraqi
9.
Zuhair HABEEB ABBAS
1968
Iraqi
10.
Hamid ABDULSADA JABBAR
1979
Iraqi