ECHR Al Saadoon case: risk of death penalty amounts to cruel and degrading treatment

On 2 March, a Chamber of the European Court of Human Rights issued its judgment in the Al Saddoon and Mufhdi v. UK case. The Chamber found that the United Kingdom had imposed mental suffering upon the applicants sufficient to violate article 3 of the European Convention on Human Rights because it exposed them to the threat of capital punishment.

Al Saddoon and Mufhdi were in fact surrendered by the British to the Iraqi’s, where they were subject to proceedings that might have had the death penalty as an ultimate result. The Chamber noted that the applicants, who are still in custody of the Iraqi authorities, continue to remain under threat of capital punishment.

Al Saddoon is the first merits judgment dealing specifically only with the death penalty and non-refoulement. The Court started its analysis by considering the developments in both treaty action and in its case law with regard to the death penalty since Soering:

118. The Court considers that, in respect of those States which are bound by it, the right under Article 1 of Protocol No. 13 not to be subjected to the death penalty, which admits of no derogation and applies in all circumstances, ranks along with the rights in Articles 2 and 3 as a fundamental right, enshrining one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed (see, mutatis mutandis, Soering, cited above, § 88; McCann and Others v. the United Kingdom, judgment of 27 September 1995, § 147, Series A no. 324).

120. It can be seen, therefore, that the Grand Chamber in Öcalan did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty. Moreover, as noted above, the position has evolved since then. All but two of the Member States have now signed Protocol No. 13 and all but three of the States which have signed have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty (cf. Soering, cited above, §§ 102-104).

123. The Court further reiterates that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy, cited above, § 125). Similarly, Article 2 of the Convention and Article 1 of Protocol No. 13 prohibit the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there (see Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008; and see, mutatis mutandis, Soering, cited above, § 111; S.R. v. Sweden (dec.), no. 62806/00, 23 April 2002; Ismaili v. Germany (dec.), no. 58128/00, 15 March 2001; Bader and Kanbor, cited above, § 42; Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009).

The Court has clearly held that Article 2 ECHR provides for a non-refoulement obligation: there can be no extradition if a serious risk of the death penalty is established. It is noteworthy, however, that the UK government’s argument is that the applicants in this case were not held in the UK, but in Iraq, and that the UK had a legal obligation to transfer them to Iraqi authorities. In the UK’s view, this necessitates that the non-refoulement obligation be qualified to take into account these exceptional circumstances, and the fact that the UK would otherwise be forced to violate its obligations towards Iraq.

To the goverment’s argument the Court replied the following:

126. The Government contended that they were under an obligation under international law to surrender the applicants to the Iraqi authorities. In this connection, the Court recalls that the Convention must be interpreted in the light of the rules set out in the Vienna Convention on the Law of Treaties, 1969, of which Article 31 § 3(c) indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. More generally, the Court recalls that the principles underlying the Convention cannot be interpreted and applied in a vacuum. The Convention should be interpreted as far as possible in harmony with other principles of international law of which it forms part (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; Banković, cited above, §§ 55-57). The Court has also long recognised the importance of international cooperation (see Al-Adsani, § 54 and Bosphorus, § 150, both cited above).

127. The Court must in addition have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. Its approach must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, Soering, cited above, § 87; Loizidou v. Turkey (preliminary objections), cited above, § 72; McCann and Others, cited above, § 146).

128. It has been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention (Bosphorus, cited above, § 153). The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (see Bosphorus, cited above, § 154 and the cases cited therein). For example, in Soering, cited above, the obligation under Article 3 of the Convention not to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment was held to override the United Kingdom’s obligations under the Extradition Treaty it had concluded with the United States in 1972.

Finally, the Court denied that the non-refoulement obligation with respect to the death penalty should apply differently to UK troops in Iraq:

137. Protocol No. 13 came into force in respect of the United Kingdom on 1 February 2004. The Court considers that, from that date at the latest, the respondent State’s obligations under Article 2 of the Convention and Article 1 of Protocol No. 13 dictated that it should not enter into any arrangement or agreement which involved it in detaining individuals with a view to transferring them to stand trial on capital charges or in any other way subjecting individuals within its jurisdiction to a real risk of being sentenced to the death penalty and executed. Moreover, it considers 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.

138. The Government have contended that, in accordance with well established principles of international law, they had no option but to respect Iraqi sovereignty and transfer the applicants, who were Iraqi nationals held on Iraqi territory, to the custody of the Iraqi courts when so requested. In this respect, however, the Court refers to its case-law, summarised in paragraphs 126-128 above, to the effect that it is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention. This principle carries all the more force in the present case given 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.

139. The domestic courts considered themselves bound by the principles of international law concerning “diplomatic asylum”, as applied by the Court of Appeal in the R(B) case (see paragraphs 58, 72 and 94 above), to find that the duty to provide refuge extra-territorially could operate only where there was clear evidence that the territorial State intended to subject the individual to treatment so harsh as to constitute a crime against humanity. It is not necessary in this judgment for the Court to examine generally the principles of “diplomatic asylum” or to establish when, if ever, the surrender of an individual by a Contracting State’s diplomatic or consular agents could give rise to a violation of the Convention. It merely notes in passing that the Commission in its admissibility decision in W.M. v. Denmark, no. 17392/90, Commission decision of 14 October 1992, Decisions and Reports 73, p. 193, appeared to assume, albeit without detailed reasoning, that the Soering principle against refoulement would apply where an individual sought and was refused refuge in a Contracting State’s embassy.

140. The Court considers in any event that the facts of the present case are such as clearly to distinguish it from a situation of “diplomatic asylum”, for the following reasons. Diplomatic and consular premises have a particular status under international law. When a State sets up a diplomatic mission it agrees to respect the laws of the territorial State and not to interfere in its internal affairs (Vienna Convention on Diplomatic Relations, Article 41 § 1: see paragraph 93 above); this is one of the conditions on which the territorial State consents to the establishment of the mission. Thus, when an individual seeks refuge at an embassy, the obligations owed by the sending State to the territorial State are known and apply ab initio (although there may be other conflicting obligations, for example under the Convention). In contrast, in the present case, the applicants did not choose to seek refuge with the authorities of the United Kingdom; instead, the respondent State’s armed forces, having entered Iraq, took active steps to bring the applicants within the United Kingdom’s jurisdiction, by arresting them and holding them in British-run detention facilities (see Al-Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, §§ 84-89, 30 June 2009). In these circumstances, the Court considers that the respondent State 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.

141. In any event, the Government have not satisfied the Court that the need to secure the applicants’ rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 inevitably required them to act in contravention of Iraqi sovereignty. It does not appear from the evidence before the Court that, despite the concerns voiced at ministerial level as early as July 2004 about the risk of the imposition of the death penalty if the applicants were tried by the Iraqi courts (see paragraph 44 above), any real attempt was made to negotiate with the Iraqi authorities to prevent it. According to the evidence of Mr Watkins before the Divisional Court and Court of Appeal (see paragraphs 56 and 66 above), it was the judgment of the United Kingdom Government towards the end of 2008 that it would not be politic even to raise with the Iraqi Government the possibility of removing the applicants to the United Kingdom or continuing to detain them in Iraq after 31 December 2008. However, it would appear from the minute of the DIRC meeting of 28 September 2004 that the Iraqi prosecutors initially had “cold feet” about bringing the case themselves, because the matter was “so high profile” (see paragraph 44 above). This could have provided an opportunity to seek the consent of the Iraqi Government to an alternative arrangement involving, for example, the applicants being tried by a United Kingdom court, either in Iraq or in the United Kingdom. It does not appear that any such solution was ever sought.

142. The Government accept, moreover, that no attempt was made, during the negotiations for the United Kingdom-Iraqi MoU of November 2004 or at any other time, to seek a general assurance from the Iraqi authorities that, in the light of the United Kingdom’s binding obligations under the Convention and Protocol No. 13, no individual transferred from the physical custody of the United Kingdom Armed Forces could be subjected to the death penalty. Similarly, the Government do not contend that, before the decision was made to refer the applicants’ cases to the Iraqi courts, any request was made to the Iraqi authorities for a binding assurance that, if the cases were referred, the applicants would not be at risk of capital punishment. Indeed, it would appear that it was only after the applicants had lodged an application for judicial review before the Divisional Court that a first effort was made to seek clemency on their behalf. However, as the domestic courts found, no binding guarantee was obtained.

143. In summary, therefore, the Court considers that, in the absence of any such binding assurance, the referral of the applicants’ cases to the Iraqi courts and their physical transfer to the custody of the Iraqi authorities failed to take proper account of the United Kingdom’s obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 since, throughout the period in question, there were substantial grounds for believing that the applicants would face a real risk of being sentenced to death and executed.

144. The outcome of the applicants’ case before the IHT is currently uncertain. While the applicants remain at real risk of execution since their case has been remitted for reinvestigation, it cannot at the present time be predicted whether or not they will be retried on charges carrying the death penalty, convicted, sentenced to death and executed. Whatever the eventual result, however, it is the case that through the actions and inaction of the United Kingdom authorities the applicants have been subjected, since at least May 2006, to the fear of execution by the Iraqi authorities. The Court has held above that causing the applicants psychological suffering of this nature and degree constituted inhuman treatment. It follows that there has been a violation of Article 3 of the Convention.

145. In the circumstances, and in view of the above finding, the Court does not consider it necessary to decide whether there have also been violations of the applicants’ rights under Article 2 of the Convention and Article 1 of Protocol No. 13.

For thorough comments on the Judgment see Marko Milanovic on EJIL blog

One Response

  1. thanks a lot. here’s what i call a great commentary to a soon-to-be landmark decision. I’m actually surprised to see such little debate about it.

    cheers!

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