Al-Saadoon and Mufdhi v. the United Kingdom (dec.)

Information Note on the Court’s case-law No. 120

June 2009

Al-Saadoon and Mufdhi v. the United Kingdom (dec.) - 61498/08

Decision 30.6.2009 [Section IV]

Article 1

Responsibility of states

Territorial jurisdiction in relation to detention of Iraqi nationals by British Armed Forces in Iraq: admissible

Article 2

Article 2-1

Death penalty

Life

Transfer of suspects under control of British Armed Forces in Iraq into custody of Iraqi authorities on charges carrying death penalty: admissible

Article 34

Hinder the exercise of the right of petition

Alleged failure to comply with indication by Court not to transfer applicants to authorities of another State where they faced the death penalty: admissible

Article 1 of Protocol No. 13

Abolition of the death penalty in all circumstances

Transfer of suspects under control of British Armed Forces in Iraq into custody of Iraqi authorities on charges carrying death penalty: admissible

This case concerns a complaint by two Iraqi nationals that the British authorities in Iraq had transferred them to Iraqi custody in breach of an interim measure indicated by the European Court under Rule 39, so putting them at real risk of an unfair trial followed by execution by hanging.

(a) Background: On 20 March 2003 a coalition of Armed Forces (the Multi-National Force – MNF) commenced the invasion of Iraq. After major combat operations had ceased, the Coalition Provisional Authority (CPA) was created as a caretaker administration until an Iraqi government could be established. In July 2003 the Governing Council of Iraq was formed and the CPA assumed a consultative role. On 27 June 2004 the CPA issued a memorandum providing that criminal detainees were to be handed over to the Iraqi authorities as soon as reasonably practicable and an order (CPA Order No 17 (revised)) that stipulated that for the duration of the order MNF premises on Iraqi territory were to remain inviolable and subject to the exclusive control and authority of the MNF. The occupation came to an end the following day and authority was transferred from the CPA to the interim Government. Thereafter the MNF, including the British contingent, remained in Iraq pursuant to requests by the Iraqi Government and authorisations from the United Nations Security Council. The United Kingdom and Iraqi authorities subsequently entered into a Memorandum of Understanding that stipulated that the interim Iraqi Government had legal authority over all criminal suspects in the physical custody of the British contingent. The MNF’s UN Mandate to remain in Iraq expired on 31 December 2008.

(b) Applicants’ case: The applicants were arrested by British forces following the invasion of Iraq. They were initially detained in British-run detention facilities as “security detainees” on suspicion of being senior members of the Ba’ath Party under the former regime and of orchestrating violence against the coalition forces. In October 2004 the British military police, which had been investigating the deaths of two British soldiers who had been ambushed and murdered in southern Iraq on 23 March 2003, concluded that there was evidence that the applicants had been involved. In December 2005 the British authorities formally referred the murder case against the applicants to the Iraqi criminal courts. In May 2006 an arrest warrant was issued against them under the Iraqi Penal Code and an order made authorising their continued detention by the British Army in Basra. The UK authorities reclassified the applicants’ status from “security detainees” to “criminal detainees”. The cases were then transferred to Basra Criminal Court, which decided that the allegations against the applicants constituted war crimes triable by the Iraqi High Tribunal (IHT), which had power to impose the death penalty. The IHT made repeated requests for the applicants’ transfer into its custody. The applicants sought judicial review in the English courts of the legality of the proposed transfer. The Divisional Court declared it lawful on 19 December 2008 and its decision was upheld by the Court of Appeal on 30 December 2008. While accepting that there was a real risk that the applicants would be executed, the Court of Appeal found that, even prior to the expiry of the UN Mandate on 31 December 2008, the United Kingdom had not been exercising in relation to the applicants autonomous power as a sovereign State, but had acted as an agent for the Iraqi court. It had no discretionary power of its own to hold, release or return the applicants. In essence it was detaining them only at the request and to the order of the IHT and was obliged to return them to the custody of the IHT in accordance with the arrangements between the United Kingdom and Iraq. That was a fortiori so with the expiry of the Mandate, as after that date the British forces would enjoy no legal power to detain any Iraqi. In any event, even if the United Kingdom was exercising jurisdiction, it nevertheless had an international-law obligation to transfer the applicants to the custody of the IHT and that obligation had to be respected unless it would expose the applicants to a crime against humanity or torture. The death penalty by hanging did not fit into either of those categories. The Court of Appeal therefore dismissed the appeal.

Later the same day (30 December 2008) the applicants obtained an interim measure from the European Court under Rule 39 indicating to the UK Government that they should not to remove or transfer the applicants from their custody until further notice. However, the Government replied the following day that, since the UN Mandate was due to expire at midnight, exceptionally they could not comply with the measure and had transferred the applicants to Iraqi custody earlier in the day. The applicants were subsequently refused leave to appeal against the Court of Appeal’s decision by the House of Lords. Their trial before the IHT commenced on 11 May 2009.

Admissible under Articles 2, 3 and 6 and Article 1 of Protocol No. 13: With regard to the preliminary issue of jurisdiction, 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. During the first months of the applicants’ detention, the United Kingdom was an occupying power in Iraq. The two British-run detention facilities in which the applicants were held had been established on Iraqi territory through the exercise of military force. The United Kingdom had exercised control and authority over the individuals detained in them initially solely as a result of the use or threat of military force. Subsequently, its de facto control over those premises had been reflected in law. In particular, on 24 June 2004, CPA Order No. 17 (Revised) had provided that all premises used by the MNF should be inviolable and subject to the exclusive control and authority of the MNF. That provision had remained in force until midnight on 31 December 2008. Given the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question, the applicants were within the United Kingdom’s jurisdiction and had remained so until their physical transfer to the custody of the Iraqi authorities on 31 December 2008. The questions whether the United Kingdom was under a legal obligation to transfer the applicants to Iraqi custody and whether, if there was such an obligation, it modified or displaced any obligation owed to the applicants under the Convention, were not material to the preliminary issue of jurisdiction and had instead to be considered in relation to the merits of the applicants’ complaints.

The issue of the admissibility of the applicants’ complaints under Articles 13 and 34 was joined to the merits. Their complaints concerning conditions of detention and the risk of ill-treatment or extrajudicial killing in Iraqi custody were declared inadmissible for failure to exhaust UK domestic remedies.

See also, two recently communicated cases: Al Skeini and Others v. the United Kingdom, no. 55721/07, Information Note no. 114; and Al-Jeddav. the United Kingdom, no. 27021/08, Information Note no. 116.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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