Al-Saadoon & Mufdhi v The United Kingdom (third party intervention)
Iraqi nationals Faisal Attiyah Nassar Khalaf Hussain Al-Saadoon and Khalef Hussain Mufdhi alleged before the European Court of Human Rights (ECtHR) that their transfer from British to Iraqi custody placed them at real risk of execution by hanging.
Mr Al-Saadoon and Mr Mufdhi were arrested and detained by British forces in Baghdad, for suspected involvement in the death of two British soldiers shortly after the invasion of Iraq in 2003.
Following the start of Iraqi criminal proceedings against the two men in May 2006 on charges including war crimes, Iraqi authorities asked for the men to be transferred to them from British detention. The death penalty, which was one of the possible sentences for such crimes, had been reintroduced in Iraq in 2004.
Mr Al-Saadoon and Mr Mufdhi challenged the legality of the planned transfer before the English Courts. After this action was rejected by the English Court of Appeal in December 2008, they sought – and obtained – an order (‘interim measures’) from the ECtHR suspending their transfer until further notice. Nonetheless, British authorities handed over the two men to Iraqi authorities the next day, under the terms of a Memorandum of Understanding (MoU) between the UK and Iraq with regard to criminal suspects. The UK’s position was therefore that, as a matter of international law and in order to respect Iraqi sovereignty, it had no option but to transfer them to Iraq.
REDRESS, together with other NGOs, submitted a joint third-party intervention on 9 April 2009.
The interveners addressed, amongst other things, the UK’s contention that it had been obliged to transfer the two men to Iraq, as a matter of international law.
Emphasising the special character of the European Convention on Human Rights (the Convention) as a human rights treaty, the intervention argued that the Convention’s provisions are not generally displaced by other international legal obligations. It is for the State seeking to make a transfer to establish that protections at least equivalent to Convention rights are in place in the receiving State. This is especially important in relation to fundamental rights such as the prohibition of torture.
European Court of Human Rights (Chamber, Fourth Section), 2 March 2010
The ECtHR decided that the death penalty is no longer compatible with the right to life in Article 2 of the Convention under any circumstances. It also found that the death penalty could amount to inhuman or degrading treatment or punishment under Article 3 of the Convention.
The ECtHR considered that, from May 2006 at least (when Iraqi proceedings started) and throughout their custody and transfer by the UK, Mr Al-Saadoon and Mr Mufdhi had had a well-founded fear of execution. This fear gave rise to a significant and intensifying degree of mental suffering and amounted to inhuman treatment. The ECtHR therefore decided that, in subjecting them to such suffering, the UK had violated their rights under Article 3 of the Convention.
The ECtHR agreed with the interveners that the Convention was of special character and that the UK retained the obligation to comply with its provisions, even in the face of other competing international obligations. The ECtHR emphasised “the absolute and fundamental nature of the right not to be subjected to the death penalty and the grave and irreversible harm risked by the applicants”. It noted that no real attempt had been made to negotiate with – or seek assurances from – Iraqi authorities regarding the risk of the death penalty.
The judgment can be found here: ECtHR Chamber judgment (2 March 2010)
Case name: Al-Saadoon & Mufdhi v The United Kingdom (Application no. 61498/08)
Court/Body: European Court of Human Rights
Date intervention filed: 9 April 2009
Current status: Decision reached
Date of final decision: 2 March 2010
- Interim measures – When the ECtHR receives an application it may decide that a State should take certain measures provisionally (‘interim measures’) while it continues its examination of the case. This usually consists of requesting a State to refrain from doing something, such as not returning individuals to countries where it is alleged that they would face death or torture.