Letter from the Chair of the Committee
to Rt Hon John Hutton MP, Secretary of State for Defence, dated
13 January 2009
& MUFDHI V
We are extremely concerned that the United Kingdom
appears to have delivered the applicants in this case to the custody
of the Iraqi High Tribunal, despite a decision of the European
Court of Human Rights indicating to the UK Government that "the
applicants should not be removed or transferred from the custody
of the United Kingdom until further notice" and a finding
by UK courts that there is a substantial risk that they will face
the death penalty.
You will be familiar with the detailed facts
and chronology of this case.
The applicants are two Iraqi civilians
accused of the murder of two members of the UK Armed Forces.
They were held by the UK Armed Forces
in Basra until some time during the afternoon of 31 December
2008, when they were transferred to the custody of the Iraqi High
Those forces formed part of the multinational forces in Iraq pursuant
to UN Security Council Resolutions. Their UN mandate expired at
midnight on 31 December 2008.
The applicants argue that their return
to the Iraqi High Tribunal for trial, which has the power to impose
the death penalty, will lead to a breach of their rights under
the European Convention on Human Rights (ECHR), including the
right to life (Article 2) and the right to be free from torture,
inhuman and degrading treatment or punishment (Article 3) as well
as other Convention rights.
Their case was heard and dismissed by
the Court of Appeal on 30 December 2008, which refused to
extend an injunction preventing you from ordering the transfer
of the applicants to Iraqi custody.
On the same day, the European Court of
Human Rights took an interim measures decision, which indicated
to the United Kingdom that the applicants should not be removed
from the custody of the United Kingdom until further notice.
Despite the decision of the European
Court of Human Rights, the applicants were delivered to the Iraqi
High Tribunal on the afternoon of 31 December 2008.
We understand that the High Court granted
a further emergency injunction on the afternoon of 31 December
2008 to prevent the transfer of the applicants to Iraqi custody,
in line with the decision of the European Court of Human Rights.
This order was later rescinded as the applicants had already been
We understand that the Government wrote to the
European Court of Human Rights on 31 December 2008, to explain
their decision. The Government explained that, in light of the
decision of the Court of Appeal, and its analysis of the application
of the European Convention of Human Rights and the broader requirements
of international law, it was the view of the United Kingdom Government
that it had "no lawful option other than transfer to the
In addition, we understand that you have explained that:
The European Court of Human Rights at Strasbourg
has asked the UK to retain custody in Iraq of Mr Al Saadoon and
Mr Mufdhi when we have no legal power to do so. Compliance with
Strasbourg requests would normally be a matter of course but these
are exceptional circumstances.
Failure to comply with interim measures may
breach the right of an individual to petition the European Court
of Human Rights for a decision on the application of the European
Convention on Human Rights.
I would be grateful if you could provide my
Committee with further information about the approach of the United
Kingdom Government to this case:
1. On which day and at what time did the United
Kingdom Government receive communication of the interim measures
decision of the European Court of Human Rights?
2. On which day and at what time were you, or
your officials, made aware of this decision?
3. At what time on 31 December 2008 were
the applicants transferred to the custody of the Iraqi authorities?
4. Were the applicants' legal representatives
made aware of the decision to transfer them to the Iraqi authorities
on 31 December 2008, and if so, at what time and by what
means? If not, why not?
5. I would be grateful if you could provide a
more detailed explanation of the Government's view that its decision
to transfer the applicants is compatible with the right of individual
petition secured by Article 34 ECHR, in the light of the
interim measures decision of the European Court of Human Rights.
(a)Why does the Government consider it was appropriate
to ignore the interim measures decision of the European Court
on the basis of the UK courts' interpretation of international
law, and on the application of the ECHR?
(b)Does the Government agree that the final interpretation
of the Convention and the scope of its application is a matter
for the ECHR? If not, please explain the Government's view.
6. I would be grateful if you could outline any
communications which the United Kingdom Government has had with
the Committee of Ministers of the Council of Europe in respect
of this case. We would be grateful for copies of any information
sent by the Government to the Committee of Ministers, or which
is sent in due course.
I have copied this letter to both the Secretary
of State for Foreign and Commonwealth Affairs and the Minister
for Human Rights. We will be taking evidence from the Secretary
of State for Justice and the Minister for Human Rights on 20 January
2009 and may raise our concerns during this session.
31 January 2009
1 See for example, Independent, Pair accused of
murder handed over to Iraqi authorities, 31 December
2008; Guardian, Judges agree transfer of two Iraqis accused
of killing British soldiers, 31 December 2008; Guardian,
Lawyers query transfer of Iraqis accused of killing British
troops, 12 January 2009. Back
See Al-Saadoon & Mufdhi v Secretary of State for Defence 
EWHC 3098 (Admin); Transcript; Court of Appeal Hearing, 29-30 December
The applicants were each taken into the custody of UK Armed Forces
in April and November 2003, respectively. On 27 December
2007, after a criminal investigation, the Iraqi High Tribunal
requested that the applicants be transferred to their custody. Back
Pursuant to Rule 39 of the Rules of Court of the European
Court of Human Rights. Back
Letter dated 31 December 2008 from Derek Walton, Agent
of the Government of the United Kingdom to Mr T L Early, Section
Registrar, European Court of Human Rights. Back
Independent, Pair accused of murder handed over to Iraqi authorities,
31 December 2008. Back