Al-Sadoom and Mufdhi v United Kingdom  ECHR 282 (2 March 2010)
The European Court of Human Rights has held that the United Kingdom breached a number of its obligations under the European Convention on Human Rights by handing over two suspected insurgents (the applicants) to Iraqi authorities.
The Court found that the UK Government had not done all in its power to ensure that the applicants would not be subjected to the death penalty once transferred, thereby breaching the prohibition against inhuman treatment. Although the applicants had already been handed over by the time of the Court’s decision, the UK was ordered to do all that it could to prevent a possible death sentence being imposed.
The applicants were arrested in 2003 by UK forces in Basra on suspicion of orchestrating insurgent violence and being involved in the deaths of two UK servicemen. They were detained in UK facilities until their transfer to Iraqi authorities on 31 December 2008, the date of expiry of the UN mandate for occupying forces in Iraq.
In December 2005 the cases against the applicants were transferred to the Central Criminal Court of Iraq, and then eventually to the Iraqi High Tribunal (IHT). The IHT first requested transfer of the applicants in December 2007. The UK authorities did not initially comply with this, and later requests, due to concerns about the possible imposition of the death penalty, which was reintroduced in Iraq in August 2004, and because domestic proceedings initiated by the applicants in the English courts to prevent their transfer had not yet been completed.
The English Divisional Court held that although the applicants fell within the UK’s jurisdiction for the purpose of the Convention, it considered itself bound by the English Court of Appeal decision of R(B) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1344. This case held that where a fugitive is within the UK’s jurisdiction but on another State’s territory (such as in an embassy), the UK is obliged to surrender the fugitive unless it was clear that the fugitive would be subjected to inhuman treatment. A possible death penalty would not be characterised as such. Thus, despite the Divisional Court’s being ‘seriously troubled’ by the proposed transfer, it found that the Convention did not apply because of R(B). The proposed transfer would therefore be lawful.
An appeal to the English Court of Appeal was dismissed and a request for leave to the House of Lords was denied. The applicants were transferred from UK to Iraqi authorities on 31 December 2008. Once transferred, the applicants faced trial in the IHT. Although the initial charges were dismissed due to insufficient evidence, the case is being reinvestigated and the applicants are still in custody. As a result, the applicants still face a possible death sentence.
From the time of the initial IHT request to the transfer of the applicants, the UK Government approached the President of the IHT and Iraqi prosecutors to seek assurances that the death penalty would not be imposed. The Government also provided documentation voicing its opposition to the death penalty, pleas of clemency from the families of the UK servicemen, and a waiver by the UK embassy of any right to civil compensation. However, at the time of the Court’s judgment, no binding assurance was obtained.
The applicants alleged to the Court that they fell within UK jurisdiction and that their transfer violated their rights under, inter alia, art 2 (right to life) and art 3 (protection from inhuman treatment) of the Convention.
The Court unanimously held that there was jurisdiction and that there had been a breach of art 3. As was recognised in the English rulings, there was ‘a real risk’ of the applicants being executed. The applicants therefore had a ‘well-founded fear’ that ‘must have given rise to a significant degree of mental suffering’. This constituted inhuman treatment within the meaning of art 3.
Article 3 obliges a Convention State not to deport, extradite or transfer a person if he or she faces inhuman treatment (see Saadi v Italy  ECHR 179, ). The UK therefore breached the article. This is especially since the Court believed that more efforts should have been taken to negotiate with the Iraqis. The Court also rejected the argument that the UK was excused from the operation of the Convention as it was legally obliged to transfer the applicants: a Convention State cannot enter into an agreement with another State which conflicts with Convention obligations. This is all the more the case given the ‘absolute and fundamental nature of the right not to be subjected to the death penalty’. R(B) was distinguished as relating to persons seeking asylum, and not detainees in custody.
Given this finding, the Court did not find it necessary to rule on art 2, although it was discussed at length. The UK was ordered to take ‘all possible steps’ to obtain an assurance from the Iraqi authorities that the death penalty would not be imposed.
Relevance to the Victorian Charter
This case suggests that a court might place a weighty onus on Victorian law enforcement authorities when dealing with jurisdictions where the death penalty has not been abolished. If a suspect in Victorian custody faces a possible death sentence or inhuman treatment if transferred or extradited, this would raise serious questions under ss 9 (right to life) and 10 (protection from inhuman treatment) of the Victorian Charter.
The decision is available at www.bailii.org/eu/cases/ECHR/2010/282.html.
Michael Dunstan, Secondee Solicitor, Human Rights Law Resource Centre