UK condemned in landmark Strasbourg death penalty case

In a damning judgment of 2 March 2010, the European Court of Human Rights severely criticised the UK Government for committing serious breaches of the European Convention of Human Rights. The judgment concerns the transfer by British authorities on 31 December 2008 of two Iraqis, Faisal Al Saadoon and Khalaf Mufdhi to Iraqi custody where they faced and continue to face a real risk of death by hanging.

UK condemned in landmark Strasbourg death penalty case The Court unanimously condemned the UK Government for subjecting Al Saadoon and Mufdhi to the fear of being executed by hanging. It held that the treatment of the Iraqis constituted a breach of their Article 3 Convention rights prohibiting the use of torture and or inhuman and degrading treatment. By six votes to one the judges also found that the UK Government had breached the rules of the European Court by transferring the pair in breach of a Court injunction issued to prevent the transfer. In its judgment the Court stated that it was not satisfied that the Government had taken all reasonable steps or indeed any steps to seek to comply with the injunction. This is the first time the UK Government has acted in breach of an injunction issued by the European Court.

Faisal Al-Saadoon and Khalaf Mufdhi both known Ba’ath party members were detained “for imperative reasons of security” in Basra by the British military in 2003. They were initially held without charge by the British army in solitary confinement where they were subjected to deliberate sleep deprivation, extreme heat, arbitrary body searches and physical abuse. In 2006, three years after their initial arrest, it was alleged that they were involved in the deaths of two British soldiers, Staff Sergeant Cullingsworth and Sapper Allsop. In May of 2006 they were charged with murder and war crimes.

In 2008 Public Interest Lawyers initiated domestic legal proceedings to prevent the transfer of Al Saadoon and Mufdhi to the Iraqi High Tribunal on the basis that both faced a real risk of an unfair trial and death by hanging if convicted. On 30 December 2008 the Court of Appeal found that although there was a real risk that they would be executed the European Convention of Human Rights had no applicability as the UK were holding the two as mere agents of the Iraqi authorities. Within one hour the European Court issued an injunction to prevent the transfer. However, the following day Al Saadoon and Mufdhi were handed to the Iraqi authorities. They were transferred despite the court injunction, the lack of evidence against them, the unpredictable and highly political nature of the IHT proceedings and the very real risk that a death sentence would be imposed.

Since their transfer Al Saadoon and Mufdhi have remained in Iraqi detention. The Foreign and Commonwealth Office (“FCO”) has steadfastly refused to make diplomatic representations to prevent the imposition of the death penalty. It has sent erratic updates to the European Court on the progress of the case at the IHT. In July 2009 the charges against the pair were amended twice and then on 9 September 2009 the FCO relayed the news that the trial judge had cancelled all charges due to insufficient evidence and ordered their immediate release. It was assumed that both would be released but in January the FCO informed the Court that the IHT had ordered a new investigation and that the two, who have been in prison for over 6 years, would now face a new trial with the possible imposition of the death penalty.

Today’s judgment from the European Court is complete vindication for Al Saadoon and Mufdhi and their legal team. The Court wholeheartedly rejected the Government’s case that it had no choice under international law but to hand Al Saadoon and Mufdhi to the Iraqi authorities. While the UK Government publicly proclaims to be opposed to the death penalty in all circumstances it had no qualms in transferring two men without, as the European Court notes, making any real attempt to negotiate to prevent the risk of the death penalty. The UK Government is well aware that executions are commonplace in Iraq. At the end of 2009 it was reported that the Presidential Council of Iraq had ratified the death sentences of over 900 prisoners on death row who now face imminent execution.

Phil Shiner of Public Interest Lawyers today stated:

“Myself and my legal team at Public Interest lawyers are absolutely delighted by the decision of the European Court today. It is a national disgrace that our Government, in breach of an injunction by the European Court, was prepared to hand our clients to the Iraqi authorities when they knew full well that they faced the real risk of being executed by hanging. We hope that after today’s ruling the Government will act with decency and take time to reflect on its past actions and the criticisms made by the Court.

It should be remembered that our clients have never been found guilty of any criminal offence. Six years after their arrest they remain in custody in Iraq and they now face a new trial. This is in spite of the fact they have already been subject to a lengthy trial where the judge concluded that there was insufficient evidence to even charge them.“

Tessa Gregory of Public Interest Lawyers added:

“We call upon the UK Government in light of the severe criticisms made by the European Court to now do everything within its power to protect our clients from the death penalty and to seek their release so that they can at long last be reunited with their families. This case has been pursued for political purposes and it is now time for the Government to act.”


For more information, please contact Tessa Gregory on tessa.gregory@publicinterestlawyers.co.uk or 0121 515 5069