Strasbourg Court condemned UK in landmark death penalty case

The European Court’s judgment of 2 March 2010, the first dealing exclusively with the death penalty and non-refoulement, severely condemned the UK for handing over two Iraqi nationals held by the British military to Iraqi authorities. The mental suffering imposed upon the two men, exposing them to the threat of being executed, was sufficient to violate Article 3 of the European Convention prohibiting the use of torture or inhuman and degrading treatment.

Faisal Al-Saadoon and Khalaf Mufdhi, both former Ba’ath party members, were arrested by the UK military in 2003 and detained in a British detention facility in Basra “for imperative reasons of security.” British investigators later linked them to the killings of two British servicemen, Staff Sergeant Simon Cullingworth and Sapper Allsop. In late 2005, the case was referred to Iraqis for prosecution. After being held without charge for nearly three years, Al-Saadoon and Mufdhi were charged with murder and war crimes in May 2006.

While in British custody, the two men argued that they should not be tried in Iraq where they might face the death penalty. The High Court in London dismissed their claim. The European Court of Human Rights then asked the UK to retain custody pending appeal. However, the UK took the position that it would lose legal authority to hold the pair on 1 January 2009, when the UN mandate expired. On 31 December 2008, the UK handed them over to Iraqi authorities in defiance of the European Court.

Even though Europe is the first and only death penalty-free region in the world, the European Convention’s Article 2 dealing with the right to life technically allows for judicial execution. For the first time, the Strasbourg Court now held that the death penalty as such is in violation of the prohibition of inhuman and degrading treatment laid down in Article 3 of the European Convention. The Court stated that there can be no extradition where there is a serious risk of exposure to the death penalty. The second sentence of Article 2 § 1, referring to the death penalty as an exception to the right to life, can be seen to have been amended so as to prohibit the death penalty in all circumstances.

The Court further notes that the European Convention is applicable in this case as Al-Saadoon and Mufdhi were within the jurisdiction of the UK, distinguishing the underlying case from a situation of diplomatic asylum. 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. In contrast, in the present case, the two men did not choose to seek refuge with the authorities of the UK; instead, the British armed forces, having entered Iraq, took active steps to bring Al-Saadoon and Mufdhi within the UK's jurisdiction, by arresting them and holding them in British-run detention facilities.

The charges against Al-Saadoon and Mufdhi were dropped in September 2009 due to insufficient evidence. It was assumed that they would be released, but since their transfer, Al-Saadoon and Mufdhi have remained in custody in Iraq. A new investigation was ordered in January 2010 and the two now face a new trial and continue to face death by hanging.