Resolution CM/ResDH(2012)68[1]
Execution of the judgment of the European Court of Human Rights
Al-Saadoon and Mufdhi against the United Kingdom
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),
Having regard to the judgment transmitted by the Court to the Committee once it became final;
Case name (App. No.)
Judgment of
Final on
Al-Saadoon & Mufdhi (61498/08)
2/03/2010
4/10/2010
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent State, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent similar violations;
Having invited the authorities of the respondent State to provide an action plan concerning the measures proposed to execute the judgment;
Recalling that urgent individual measures were rapidly adopted; in particular, the Committee welcomed the fact that the United Kingdom authorities had sought assurances that the death penalty would not be applied from the Prime Minister of Iraq, the President of Iraq and the President of the Iraqi High Tribunal;
Recalling further that the Committee could note with satisfaction that, following the United Kingdom’s indication that it would need credible assurances before it could examine any request for mutual legal assistance from the Iraqi High Tribunal, the applicants were acquitted for lack of evidence and the acquittal was upheld on appeal; that they were released from custody on 4 July 2011 and 9 August 2011 respectively; and that the United Kingdom authorities confirmed to the Committee that they consider the applicants are no longer at risk of the death penalty;
Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government which sets out in detail the measures taken (see appendix);
Having noted that the respondent State paid the applicant the just satisfaction, as provided in the judgment;
DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination thereof.
Appendix to Resolution CM/ResDH(2012)68
Information about the measures to comply with the judgments in the case of
Al-Saadoon and Mufdhi against the United Kingdom
Execution of Judgments of the European Court of Human Rights
Action Report
Al-Saadoon and Mufdhi against the United Kingdom (application No. 61498/08)
Information submitted by the United Kingdom Government on 11 October 2011
Factual and Legal Context
1.Al-Saadoon and Mufdhi were arrested in Iraq by UK forces in 2003 and initially detained as security internees. They were subsequently suspected of participating in the killing of two UK soldiers. The Iraqi authorities issued arrest warrants for both individuals in 2006. They remained in a UK detention facility until 31 December 2008, the date of termination of British powers to detain individuals in Iraq, when they were transferred to the Iraqi authorities. The transfer took place despite a rule 39 indication from the European Court issued on 30 December 2008, that they should not be transferred on the basis that their transfer would expose them to the risk of the death penalty. The rule 39 indication was made after the Court of Appeal, on 30 December, dismissed the applicants’ appeal against transfer, refused them permission to appeal to the House of Lords, and refused to grant them interim relief pending either an application to the House of Lords for permission to appeal and for interim relief, or to the European Court for interim measures. The Court found that the applicants were unable to appeal to the House of Lords before their transfer because they had been informed that it was closed over the Christmas and New Year period. The applicants’ subsequent application to appeal to the House of Lords after their transfer (lodged on 6 February 2009) was refused by the House of Lords on 16 February 2009 as it judged that the case did not raise a point of law of general public importance such as to warrant a further appeal.
2.On 2 March 2010, the European Court concluded in its judgment that the transfer exposed the applicants to the risk of the death penalty should they be convicted of charges which attracted the death penalty. The Court found violations of Articles 3, 13, & 34. Under Article 46 of the Convention, the European Court Stated that "compliance with their obligations under Article 3 of the Convention requires the Government to seek to put an end to the applicants’ suffering as soon as possible, by taking all possible steps to obtain an assurance from the Iraqi authorities that they will not be subjected to the death penalty" (§171).
Individual Measures
Just satisfaction:
3. Just satisfaction award paid; evidence supplied.
Other individual measures:
4.Al Saadoon and Mufdhi were released from custody by the Iraqi authorities on 4 July 2011 and 9 August 2011 respectively. This followed the Cassation Court’s ratification of the decision made by the Iraqi High Tribunal (“IHT”) to acquit the applicants on the basis that there was insufficient evidence against them in relation to the charges that they faced. The UK is not aware of any outstanding charges against either applicant. The UK concludes that, in the circumstances, the applicants are no longer at real risk of the death penalty. Prior to their release, the UK was always mindful of its obligations arising out of paragraph 171 of the Court’s judgment and took all possible steps to obtain an assurance from the Iraqi authorities that the applicants would not be subjected to the death penalty. UK actions included writing to the President of Iraq, the Prime Minister of Iraq, and President of the (“IHT”).
General Measures
5.This unusual case arose because on 31 December 2008 UK Armed Forces ceased to have the power to detain individuals in Iraq as a matter of international law and so transferred the applicants to the Iraqi authorities. When negotiating arrangements relating to UK detainee transfers on military operations for the purpose of prosecution, assurances regarding the non-application of the death penalty will always be sought from those nations that retain the death penalty. Similarly, in this case the UK declined to further consider requests for legal assistance from the Iraqi High Tribunal in the absence of categorical assurances relating to the death penalty.
6.The Government would further wish to note that it has always made great efforts to comply with interim measures indicated by the Court under rule 39, including in situations where such indications have been communicated at very short notice. The Government attach great importance to its long history of co‑operation with the Court in respect of rule 39 indications and has a robust administrative system in place to ensure that interim measures are communicated promptly and precisely to the relevant authorities. The Government take such indications from the Court very seriously and continue to do so. The rule 39 indication in this case presented the UK Government with an unprecedented situation and it acknowledges that in this case it exceptionally failed to take steps to comply.
7.In relation to the violation of Article 13, the Supreme Court of the United Kingdom has come into operation since the time of the original legal action of this case. The Supreme Court Rules (Statutory Instrument 2009 No. 1603 (L. 17)) allow for urgent applications to be made in person; the expedition of proceedings; and that either the Court below (which refused the application) or the Registrar of the Supreme Court may stay the execution of an order pending the determination of the case. At times when the Registry is closed, the Registrar can for urgent business be contacted by telephone (Supreme Court Practice Direction 2, previously supplied).
8.Publication and dissemination
The judgment has been published and is in the public domain. For example, the judgment is available in the following locations:
-(2009) 49 European Human Rights Reports, SE11;
-(2010) 51 European Human Rights Reports, 9;
-The Times, March 10, 2010;
-LexisNexis – published the report from The Times
Case citations:
-European Human Rights Law Reports, 2010, (4), 424-428;
-Public Law, 2010, July, 621-622;
-Human Rights Law Review, 2010, 10(4), 689-714;
-Journal of International Law, 2009, 1(3), 459-518;
-International Comparative Law Quarterly, 2009, 58(3), 689-702;
-Journal of International Criminal Justice, 2009, 7(5), 1133-1147.
Conclusion
9.The Government considers that all necessary measures have been taken and the case should be closed.
[1] Adopted by the Committee of Ministers on 8 March 2012 at the 1136th Meeting of the Ministers’ Deputies.
Full & Egal Universal Law Academy