Court
European Court of Human Rights
Decided
March 2, 2010
Docket
Application no. 61498/08; ECLI:CE:ECHR:2010:0302JUD006149808
Citation
ECHR 2010
Judge
Chamber of the Fourth Section: Lech Garlicki, President; Nicolas Bratza; Giovanni Bonello; Ljiljana Mijović; Ján Šikuta; Mihai Poalelungi; Nebojša Vučinić. Judge Bratza partly dissented.
Outcome
Relief granted in part
Disposition
Unanimously: a violation of Article 3; “it is not necessary to decide whether there have been violations of Article 2 of the Convention or Article 1 of Protocol No. 13”; and no violation of Article 6. By six votes to one, “there have been violations of Articles 13 and 34 of the Convention”. Unanimously, the findings of violation “constitute sufficient just satisfaction for the non-pecuniary damage suffered by the applicants”, and EUR 40,000 to the applicants jointly for costs and expenses. The judgment became final on 4 October 2010.
Nationality
Two Iraqi nationals from southern Iraq, Faisal Attiyah Nassar Khalaf Hussain Al-Saadoon and Khalef Hussain Mufdhi, officials of the Ba’ath Party branch in Al-Zubair (paragraphs 1 and 39). British forces in Basra arrested them in 2003 (paragraph 41). Before the Iraqi High Tribunal they were charged with killing two British soldiers “when they had clearly surrendered, an offence carrying a maximum penalty of the death sentence” (paragraph 84).
British forces arrested the first applicant on 30 April 2003 and the second on 21 November 2003 and held them in British-run detention facilities in Iraq (paragraph 41). In December 2005 their cases were referred to the Iraqi courts (paragraph 162). The Divisional Court in London found: “we are satisfied that substantial grounds have been shown for believing there to be a real risk of the claimants being condemned to the death penalty and executed, contrary to Protocol No. 13, if they are transferred into the custody of the IHT”, but held that the United Kingdom was bound in international law to hand them over (paragraph 60).
On 30 December 2008 the Court indicated that they “should not be removed or transferred from the custody of the United Kingdom until further notice”. The next day the Government informed it that “the applicants had nonetheless been transferred to the custody of the Iraqi authorities earlier that day” (paragraph 4).
The Court held that from 1 February 2004, when Protocol No. 13 came into force for the United Kingdom, it should not have entered into any arrangement “which involved it in detaining individuals with a view to transferring them to stand trial on capital charges”, and that “the applicants’ well-founded fear of being executed by the Iraqi authorities during the period May 2006 to July 2009 must have given rise to a significant degree of mental suffering and that to subject them to such suffering constituted inhuman treatment within the meaning of Article 3 of the Convention” (paragraph 137). Because British forces had arrested and held them, the United Kingdom “was under a paramount obligation to ensure that the arrest and detention did not end in a manner which would breach the applicants’ rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13” (paragraph 140), and the transfer “in the absence of any such binding assurance” failed to take proper account of those obligations (paragraph 143).
On the interim measure: “The failure to comply with the interim measure and the transfer of the applicants out of the United Kingdom’s jurisdiction exposed them to a serious risk of grave and irreparable harm” (paragraph 165). For the same reason “the effectiveness of any appeal to the House of Lords was unjustifiably nullified as a result of the Government’s transfer of the applicants to the Iraqi authorities” (paragraph 166).
Caution
The Article 3 violation lies in the fear of execution to which the two men were exposed, which the Court held to be inhuman treatment; it is not a finding that they were tortured in Iraq. When the Court ruled, the Iraqi High Tribunal had cancelled the charges against them on 9 September 2009 “due to insufficient evidence”, the prosecutor had appealed, and the Court of Cassation had sent the case back for reinvestigation and retrial; they remained in custody (paragraphs 88 and 89). The Committee of Ministers of the Council of Europe, which supervised the execution of the judgment and has closed the case, records that “Al Saadoon and Mufdhi were released from custody by the Iraqi authorities in 2011”, after the Court of Cassation ratified the Tribunal’s decision to acquit them.
Article 3 ECHR
Death penalty
Transfer of custody
Interim measures
Article 34 ECHR
Effective remedy
Diplomatic assurances
The court's own text
Public copy
Read in full in the English text on HUDOC (item 001-97575) on 8 November 2026, with the Committee of Ministers’ case description on HUDOC-EXEC (item 004-2929), read the same day.
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