Information Note on the Court’s case-law No. 113
November 2008
Boumediene and Others v. Bosnia and Herzegovina - 38703/06
Decision 18.11.2008 [Section IV]
Article 3
Degrading treatment
Inhuman treatment
Failure to enforce Human Rights Chamber decisions ordering Bosnia and Herzegovina to protect the well-being and obtain the return of terrorist suspects detained in Guantánamo Bay: inadmissible
The applicants are Algerian citizens. Three of them are also citizens of Bosnia and Herzegovina (BIH). The applicants were arrested in October 2001 on suspicion of planning a terrorist attack. On 17 January 2002 the United States informed BIH that it was willing to take custody of the applicants. Later that day, the competent court ordered the applicants' release from pre-trial detention and the Human Rights Chamber ordered that all necessary steps be taken to prevent their forcible removal from the territory of BIH. The next day, the applicants were handed over to US forces operating as part of the UN peace-keeping operation. The applicants were taken to a US naval base at Guantánamo Bay. In October 2002 and April 2003 the Human Rights Chamber found numerous violations of the Convention and ordered BIH to, inter alia, use diplomatic channels and retain lawyers in order to protect the basic rights of the applicants and take all possible steps – including seeking assurances from the US via diplomatic contacts – to prevent the death penalty from being pronounced against and executed on the applicants. In one case the respondent State was additionally ordered to take all possible steps to obtain the release of the applicant and his return to BIH. In June 2004 the BIH prosecution authorities formally ended all investigations against the applicants with regard to any suspicion of terrorism. In July 2004 a representative of the Ministry of Justice of BIH visited the four applicants. They all complained of inadequate medical attention. In October 2004 the applicants were declared “enemy combatants” by the US Combatant Status Review Tribunal. In February 2005 the Prime Minister of Bosnia and Herzegovina sought the return to BIH of the four applicants. The US Secretary of State replied that they continued to possess significant intelligence value and posed a continuing threat to US security interests. In 2005 and 2006 the competent US Administrative Review Boards recommended that the applicants' detention be continued. In April 2006 the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (the legal successor to the Human Rights Chamber) held that the BIH authorities had failed to take all possible steps to protect the basic rights of the applicants and to prevent the death penalty from being pronounced against them. In September 2007 the US embassy in Sarajevo assured the Government of BIH that the US strictly adhered to international and domestic law provisions prohibiting cruel or degrading treatment and torture in its treatment of all detainees at Guantánamo Bay and that the US Department of Defence did not intend to seek the death penalty in the applicants' cases. In June 2008 the US Supreme Court held that the applicants had illegally been denied access to habeas corpus.
Inadmissible: The Court left open the question whether it had jurisdiction to deal with the instant case notwithstanding the fact that the applicants had been transferred to the custody of the US before the entry into force of the Convention in respect of BIH. It did not consider it necessary to examine whether the BIH authorities would have had an obligation under the Convention to intervene vis-à-vis the US authorities on behalf of the applicants even in the absence of domestic decisions ordering it to do so. In the instant case, the BIH authorities had made repeated interventions vis-à-vis the US, the first of which had been made only one week after the first decision of the Human Rights Chamber concerning this matter. They had clearly demonstrated their unequivocal commitment to repatriating the applicants and had also removed all internal obstacles to their return to BIH. Moreover, the BIH authorities had sent an official to visit the applicants at the detention centre at Guantánamo Bay. The BIH authorities had had to wait for seven months to receive preliminary instructions concerning access to Guantánamo Bay detainees and another six months before they had obtained an official invitation from the US authorities. Therefore, the responsibility for any delays could not be attributed to BIH. Neither could BIH be held responsible for not having access to some of the applicants or for not being able to focus more on their situation at the detention centre. Moreover, there was no indication that BIH had had in its possession any exculpatory evidence to submit to the Administrative Review Boards in support of the applicants' release. Lastly, the Court was aware of the finding of the domestic Human Rights Commission in this matter. However, taking into consideration subsequent developments and, in particular, the assurances obtained by the BIH authorities that the applicants would not be subjected to the death penalty, torture, violence or other forms of inhuman or degrading treatment or punishment, the Court concluded that BIH could be considered to have been taking all possible steps to the present date to protect the basic rights of the applicants, as required by the domestic decisions in issue: manifestly ill-founded.
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This summary by the Registry does not bind the Court.
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