CEDH · CASELAW;CLIN;ENG — 21 octobre 2025

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Denmark - 46571/22 Judgment 21.10.2025 [Section IV] Article 1 Jurisdiction of States Lack of jurisdiction for alleged ill-treatment of Iraqi nationals in 2004 by Danish soldiers who were part of the UN-authorised multinational military force in Iraq, after its sovereignty was transferred to the interim government, during a search and arrest operation Article 3 Degrading treatment Inhuman treatment Torture Lack of jurisdiction for alleged ill-treatment of Iraqi nationals in 2004 by Danish soldiers who were part of the UN-authorised multinational military force in Iraq, after its sovereignty was transferred to the interim government, during a search and arrest operation: Article 3 (substantive) incompatible ratione personae Facts – The applicants are twenty-one Iraqi nationals. Following the end of the war in Iraq in the spring of 2003, UN Security Council Resolution 1546 of 8   June 2004 laid down the general framework for the continued presence of international coalition forces in Iraq after the planned transfer of power to an interim government and authorised the multinational military force to take all necessary measures, including the use of armed force, to further the maintenance of stability and security in Iraq, including the prevention of terrorism. The Security Council also recognised that the multinational force would assist in building the capability of the Iraqi security forces through, inter alia , a programme of mentoring and monitoring. On 2   June 2004 full sovereignty over Iraq was transferred to the interim Iraqi government. As part of the international coalition efforts, Danish forces were deployed in Iraq between 2003 and 2007. The Danish contribution was implemented through the directive of Defence Command Denmark of 1   September 2004 on DANCON/Iraq (“the operation directive”), which specified the operational rules for the Danish battalion and forces during their deployment. The directive required Danish forces to be on the alert for any unlawful acts committed by the Iraqi authorities and to report any such acts and, depending on the circumstances, to seek to intervene. Further, it established that if the Iraqi authorities were to detain or arrest persons in connection with operations carried out in cooperation with Iraqi security forces and police, any such arrests should be considered independent Iraqi arrests and therefore not a surrender of detainees from Danish forces to Iraqi authorities. On 25   November 2004, at the request of Iraqi authorities, Danish and British military forces participated in Operation Green Desert (“the Operation”) an Iraqi search and arrest operation in Az Zubayr, outside Basra. Reports indicated that the Iraqi security forces arrested and detained a total of 36   people. Following allegations of ill-treatment of detainees during that operation the Danish Military Prosecution Service, conducted three separate investigations in 2010, 2012 and 2015; each time new information came to light about alleged ill-treatment of the detained persons during the Operation, whether via the media or by disclosure of new evidence, it immediately prompted an investigation or a re-investigation of the case. The investigations all found that there was no reason to bring charges against Danish soldiers as it could not reasonably be inferred that criminal offences had been committed. In 2018 a civil claim for compensation by twenty-three plaintiffs, including the applicants, was allowed by the High Court in part. That court found that eighteen of the plaintiffs, including seventeen of the applicants, had been subjected to inhuman treatment either during their transfer or detention at Al Jameat police station and awarded compensation. It also found that although the police station in question had been controlled by the Iraqi government Danish forces ought to have known that there had been a general risk that people might be ill-treated there. In 2022 the Supreme Court upheld in part an appeal by the Ministry of Defence and dismissed the applicants’ claims. It agreed with the High Court’s findings of fact, including that the Danish forces had not had command of the Iraqi military and police forces and had not participated in the applicants’ detention and consequently they had not surrendered the applicants to the Iraqi forces either. Moreover, neither Danish forces nor forces under their operational control had subjected the applicants to inhuman treatment or witnessed or overheard such treatment. The Supreme Court confirmed the High Court’s finding that the Danish soldiers and military police had merely monitored and mentored the Iraqis in accordance with the Danish mandate in Iraq and the operation directive. In conclusion, the Supreme Court found that Denmark had no jurisdiction over the applicants within the meaning Article 1 of the Convention and that therefore there had been no breach of Article   3. It also dismissed the applicants’ complaints under Article   6. Law – Article   3: The Court declared inadmissible the applicants’ complaints both under the substantive and procedural aspect. (1) Alleged violation of the substantive aspect – The applicants had claimed they had been within the Danish State’s jurisdiction due to the fact that the Operation had been carried out under the control of the Danish forces whose role had been to educate and train the Iraqi forces, and who had been directly involved in their detention. Moreover, they had alleged specific features of the Operation showed that the Danish forces had exercised some of the public powers that had been within the prerogative of the Iraqi government and that therefore a de facto judicial link had been created. The Court thus examined whether, based on the facts, it was clear that the Danish State, through its agents, had exercised control over the applicants. The Court noted that the domestic courts had carried out very detailed and thorough   assessments based on extensive evidence including numerous witness statements, documents and video footage. They had concluded that the Iraqi forces had had full control of the Operation. Although they had found that eighteen of the plaintiffs had been subjected to torture, they had also found that there had been circumstances raising doubts as to the correctness of the statements made by the applicants, and that to some extent those statements had lacked credibility. The Court found that the applicants had failed to substantiate any elements or shortcomings which could lead it to depart from the domestic courts’ findings of facts. In particular, they had failed to point to any specific evidence, showing that the Danish forces involved had exercised some of the public powers normally to be exercised by a sovereign government or had exercised control over them within the meaning of Article   1, by using force, either by exercising physical power and control over them during their arrest or that they had carried out isolated and specific acts of violence involving an element of proximity. In that respect although the Danish forces had carried out a role as mentor and monitor for the Iraqi forces and some of the Danish soldiers might have seen heavy-handed treatment of detained Iraqis by the Iraqi security forces, such facts might have been relevant for the assessment by the domestic courts as to whether the Ministry of Defence had been liable under Danish Tort Law, but they could not lead to the conclusion that the Danish forces had exercised control over the applicants within the meaning of Article   1. The Court was thus not satisfied that the applicants had been within the jurisdiction of the respondent State for the purposes of Article   1. (2) Alleged violation of the procedural aspect – The applicants had not specified or further developed on the “special features” which in their view had triggered the procedural obligation under Article 3. Moreover, it had been disputed whether when the investigations had been initiated, they had had an arguable claim that Danish forces had been involved in their ill-treatment. The domestic courts had found that the alleged ill‑treatment by Danish soldiers had not taken place. Any duty to investigate would only concern ill-treatment carried out by Danish soldiers and not what might or might not have happened to the applicants when detained by British or Iraqi authorities outside the Danish forces’ control. It was therefore doubtful whether the applicants had been under the jurisdiction of the Danish State in respect of the procedural obligation under Article   3. In any event, even if in 2004 there had existed special features bringing the applicants within the Danish State’s jurisdiction in respect of the procedural obligation of Article   3, and even if they had had based on the information available in 2004 an arguable claim that they had been tortured by Danish soldiers, there was no indication that the Danish authorities had failed to carry out an effective investigation or that the investigation had been flawed due to lack of promptness, involvement of the applicants, independence, or other shortcomings. Article   6 §   1: The Supreme Court had observed that the High Court proceedings had been based on extensive evidence, including seventy-six testimonies, heard over fifty-two days and that the High Court had continuously considered a number of issues, including whether witness examinations requested had been relevant and the soundness and adequacy of evidence. The new exhibits that had been produced to the Supreme Court mostly by the applicants had been duly considered. The Court saw no reason to question those findings. The applicants had also been granted free legal aid throughout proceedings and had been represented by counsel. More importantly, they had not pointed to any decisions of the domestic courts refusing to allow them to give evidence, nor had they specified what evidence they had been allegedly prevented from submitting or submitting in a timely manner. Additionally, they had not substantiated their assertion that not having access to free legal aid to cover their travel expenses to be present during the entire trial or that the sum granted as legal aid for a tort claim had been arbitrary or disproportionate. Regarding the non-disclosure of certain information, it had been primarily names that had been redacted, and the Ministry of Defence had described the redacted information. The applicants had failed to explain and substantiate, why or how that very limited redacted information had been essential for their case. There were no elements indicating either that the State had prevented the applicants from gaining access to, or falsely denied the existence of, documents in its possession. The foregoing considerations were sufficient to enable the Court to conclude that the applicants had been given access to a court, at two levels, for their civil compensation claim, and that the proceedings had been fair including that the adversarial principle and the principle of equality of arms had been complied with. Conclusion : no violation (unanimously). (See Al-Skeini and Others v.   the United Kingdom [GC], 55721/07, 7   July 2011, Legal Summary ; Güzelyurtlu and Others v.   Cyprus and Turkey [GC], 36925/07, 29   January 2019, Legal Summary ; Hanan v.   Germany [GC], 4871/16, 16   February 2021, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .