In the final days of 2008, the European Court of Human Rights issued an order against the United Kingdom protecting two Iraqis who were threatened with being transferred from the custody of the UK to Iraqi authorities. I don’t believe such orders are ever posted on the website of the Court. I have obtained a copy of the confirmation letter that was sent to the solicitor for the applicants: http://www.mediafire.com/?jjzlztm9xyn. Subsequent to the order, an injunction was issued by the High Court to prevent the transfer, as this would breach the provisional measures requested by the Court, but a few hours before midnight the order was rescinded and the UK proceeded with the transfer. ‘Unprecedented and shocking’ is how the solicitor for the applicants, Phil Shiner, describes the developments.
At least two important issues are raised in this case: 1. the binding nature of provisional measures requests from the European Court of Human Rights; and 2. the extraterritorial scope of the European Convention on Human Rights, that is, its application to the British in Iraq. As for the first one, I thought this had all been decided in favour of the binding nature of such requests by case law of the Court, which only confirms the approach of the International Court of Justice in the LaGrand case. On the second point, obviously the judge who issued the provisional measures request considered that there was a serious legal foundation for a claim before the European Court of Human Rights concerning the acts of the United Kingdom in Iraq.
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The letter says that the case is that of Al-Saadoon and Mufdhi. That case, of course, has only just been decided in the High Court (http://www.bailii.org/ew/cases/EWHC/Admin/2008/3098.html and http://invisiblecollege.weblog.leidenuniv.nl/2008/12/30/cooperation-in-iraq-and-the-echr). Is there any indication why the applicants did not appeal the High Court's judgment to the Court of Appeal? Or did they?
Incidentally, the High Court has addressed the issue of extraterritorial application, finding that the Convention did, in principle, apply.
If I may be permitted to answer my own question, and apologise for my ill-informed question as well: the applicants did go to the Court of Appeal, but lost there. Their appeal was dismissed on 30 December. The English court also declined to extend the injunction against their transfer to allow for a petition to the House of Lords and an application to the ECtHR. The two men were then very quickly transferred, in breach of the order from the European Court.
The Court of Appeal noted, in giving its reasons for dismissing the appeal yesterday, that the transfer had taken place despite the order from Strasbourg, but it did not issue a word of disapproval. Given that such orders are indeed binding (Mamatkulov and Askarov v Turkey), I fail to understand why (even though the binding force is under international law only, not under the Human Rights Act).
The judgment is here: http://www.bailii.org/ew/cases/EWCA/Civ/2009/7.html
The Court holds that the two men were not under the 'jurisdiction' (Article 1 ECHR) of the UK. It adds that, even if the Convention had applied, there would have been no protection against the transfer, because the UK was obliged under international law to effect the handover (R (B.) v Secretary of State for Foreign and Commonwealth Affairs, followed). Moreover, the Court finds that there was no regional customary law in Europe condemning the death penalty, and that the execution of a sentence of death by hanging did not amount to a crime against humanity.
I have some - rather critical - comments on the case at http://invisiblecollege.weblog.leidenuniv.nl/2009/01/21/cooperation-in-iraq-and-the-echr-an-awfu.
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