The European Court of Human Rights found that the transfer to the Iraqi authorities of 2 men detained by the UK in Iraq breached their right to freedom from inhuman treatment by exposing them to an ongoing fear that they may face the death penalty. The 2 men were transferred in breach of interim measures granted by the Court on 31 December 2008, which the Court ruled amounted to violations of their right to an effective remedy and to make an unhindered application to the Court, under Articles 13 and 34 of the Convention.
The Court found that, despite being aware of the risk that the 2 men could face the death penalty, the UK Government failed to make “any real attempt” to negotiate with the Iraqi authorities to prevent it. The Court rejected the UK Government’s argument that it had no choice but to transfer the 2 men, finding that the situation was of the UK’s “own making”. The Court was not satisfied that the UK Government took all reasonable steps, “or indeed any steps” to seek to comply with its indication of interim measures.
The Court held that “through the actions and inaction of the United Kingdom authorities the applicants have been subjected to mental suffering caused by the fear of execution amounting to inhuman treatment within the meaning of Article 3. While the outcome of the proceedings before the IHT remains uncertain, that suffering continues. For the Court, compliance with their obligations under Article 3 of the Convention requires the Government to seek to put an end to the applicants' suffering as soon as possible, by taking all possible steps to obtain an assurance from the Iraqi authorities that they will not be subjected to the death penalty.”
Although the Court did not need to decide the complaints under Article 2 and Protocol 13 of the Convention, it did make some important observations of the scope of those obligations.
Ben Emmerson QC, Karon Monaghan QC, Raza Husain and Helen Law were involved in this case.
The full judgment is available online here and as a PDF below.
Press coverage is available from The Guardian and The Independent websites.