CEDH · PRESS;ADMISSIBILITYDECISIONS;ENG — 3 juillet 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   544 03.07.2009   Press release issued by the Registrar   ADMISSIBILITY DECISION AL-SAADOON & MUFDHI v. THE UNITED KINGDOM   A Chamber of the European Court of Human Rights has declared partly admissible the application lodged on 22 December 2008 in the case of Al-Saadoon & Mufdhi v. the United Kingdom ( application no. 61498/08 ). The merits of the case will be examined at a later date.   The case concerns the complaint by the applicants, accused of involvement in the murder of two British soldiers shortly after the invasion of Iraq in 2003, that the British authorities transferred them to Iraqi custody in December 2008 and that they are at real risk of being subjected to an unfair trial followed by execution by hanging.   The applicants, Faisal Attiyah Nassar Khalaf Hussain Al-Saadoon and Khalef Hussain Mufdhi, are Iraqi nationals who were born in 1952 and 1950. They are Sunni Muslims from southern Iraq and former senior officials of the Ba’ath party. They are currently detained in Rusafa Prison, near Baghdad.   Following the invasion of Iraq on 20 March 2003, the applicants were arrested by British forces and detained in British-run detention facilities “for imperative reasons of security.” Their notices of internment stated that they were suspected 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 Special Investigations Branch of the UK’s Royal Military Police, which had been investigating the deaths of two British soldiers, Staff Sergeant Cullingworth and Sapper Allsopp, who had been ambushed and murdered in southern Iraq on 23 March 2003, concluded that there was evidence that the applicants had been involved.   On 16 December 2005, the British authorities decided to refer the murder case against the applicants to the Iraqi criminal courts. On 18 May 2006 an arrest warrant was issued against them under the Iraqi Penal Code; an order was also made authorising their continued detention by the British Army in Basra. The cases were then transferred to Basra Criminal Court which decided that the allegations against the applicants constituted war crimes and therefore fell within the jurisdiction of the Iraqi High Tribunal (“IHT”: a court set up under Iraqi national law, to try Iraqi nationals or residents accused of genocide, crimes against humanity and war crimes allegedly committed during the period 17   July 1968 to 1 May 2003 and to impose sentences in line with Iraqi law, including the death penalty which was reintroduced to the Iraqi Penal Code in August 2004). On 27 December 2007 the IHT formally requested the British forces to transfer the applicants into its custody; repeated requests were made to that effect until May 2008.   On 12 June 2008, the applicants brought judicial review proceedings in England challenging, among other things, the legality of their transfer. The case was heard by the English Divisional Court which, on 19 December 2008, declared the proposed transfer lawful. The court found that since the applicants were held in a British military detention facility, albeit since 18 May 2006 on the order of the Iraqi Criminal Court, they were within the jurisdiction of the UK as provided by Article 1 (obligation to respect human rights) of the European Convention of Human Rights. However, under public international law the UK was obliged to surrender the applicants unless there was clear evidence that the receiving State intended to subject them to treatment so harsh as to constitute a crime against humanity. The evidence before it fell far short of establishing substantial grounds for believing there to be a real risk that, on being transferred, a trial against the applicants would be flagrantly unfair or that they would face torture and/or inhuman and degrading treatment. Moreover, although it found that there was a real risk that the death penalty, contrary to Protocol No. 13 (abolition of the death penalty) to the Convention which had entered into force in respect of the UK in February 2004, would be applied if the applicants were surrendered to the Iraqi authorities, the death penalty in itself was not prohibited by international law.   The applicants’ appeal was refused by the Court of Appeal on 30 December 2008. It was accepted that there was a real risk that the applicants would be executed but, as they were being held within another sovereign State, they did not fall within the UK’s jurisdiction, and the UK therefore had no discretionary power of its own to hold, release or return the applicants. The UK was in essence detaining the applicants only at the request and order of the IHT and was obliged to return them to the IHT in accordance with UK-Iraq arrangements. In any event, even if the applicants did fall within the UK’s jurisdiction, the death penalty was not contrary to international law and there was no evidence that there would be a crime against humanity or torture if the applicants were transferred. In those circumstances the UK’s obligation to respect Iraqi sovereignty and transfer the applicants had to take precedence.   Immediately after that decision, the applicants applied to the European Court of Human Rights for an interim measure under Rule 39 of its Rules of Court to prevent the British authorities making the transfer. On 30 December 2008 the Court indicated to the UK Government that the applicants should not be removed or transferred from their custody until further notice. The following day the UK Government informed the Court that, principally because the UN Mandate, which authorised the role of British forces in arrest, detention and imprisonment tasks in Iraq, was due to expire at midnight on 31 December 2008, exceptionally they could not comply with the measure indicated by the Court and that they had transferred the applicants to Iraqi custody earlier that day.   On 16 February 2009 the applicants were refused leave to appeal by the House of Lords.   The applicants’ trial before the IHT commenced on 11 May 2009. If convicted, they will have 28 days from the date of the verdict to make an appeal.   The applicants complain about their transfer to Iraqi custody. They rely on Article 2 (right to life), Article 3 (prohibition of torture and or inhuman and degrading treatment), Article 6 (right to a fair trial) and Article 1 of Protocol No. 13 (abolition of the death penalty). They also complain about the fact that that they were transferred to the Iraqi authorities despite the Court’s indication under Rule 39 of its Rules of Court, in breach of Articles 13 (right to an effective remedy) and 34 (right of individual petition).   As concerned the preliminary issue of jurisdiction, the European Court of Human Rights considered that the United Kingdom authorities 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. The applicants were therefore within the UK’s jurisdiction and remained so until their physical transfer to the custody of the Iraqi authorities on 31   December 2008.   The Court further considered that the applicants’ complaints that, at the moment they were transferred, there were substantial grounds for believing that they were at real risk of being subjected to an unfair trial before the IHT followed by execution, raised serious questions of fact and law which were of such complexity that they had to be determined on an examination of the merits. Those complaints under Articles 2, 3, 6 and 1 of Protocol No. 13 were therefore declared admissible. The issue of the admissibility of the complaints under Articles 13 and 34, closely connected to those complaints, were joined to the merits of the case.   The complaints concerning ill-treatment and/or extra-judicial killing in Rusafa Prison were, however, declared inadmissible as the applicants had not exhausted all available domestic remedies before the British courts [1] .     ***   The decision is available (in English) today on the Court’s Internet site ( http://www.echr.coe.int ). Judgment will be delivered at a later date.   Press contacts Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frederich Dolt (telephone : 00 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] This summary by the Registry does not bind the Court.