By Tobias Thienel

A few weeks ago, I reported on this blog – with some dismay – that the British Army in Iraq had unlawfully transferred two men to the Iraqi High Tribunal. In so doing, the UK not only violated its obligation not to transfer persons where they may be sentenced to death and executed after transfer. It also acted directly contrary to an interim measure indicated by the European Court of Human Rights.

I have now come across the UK’s official reasons for doing so. The statements do not make for happy reading. It might have been understandable if the European Court’s order had simply not reached the relevant Army unit in time for the transfer to be stopped. But that was not the operative reason. Continue reading →

By Tobias Thienel

A few days ago, I noted on this blog a recent case from the English High Court, which addressed the possibility that the British forces in Iraq might be prevented by the ECHR from handing over suspects to the Iraqi authorities for prosecution. The High Court had held at the time that the two claimants could not resist their transfer to the Iraqi High Tribunal, even though they did run a risk of being sentenced to death and executed. However, the Court held so only reluctantly, and only because it was bound by precedent – a precedent, moreover, which the High Court pretty much knew to be wrong.

The claimants’ hopes then rested on the Court of Appeal. But all such hopes were dashed when the Court of Appeal on 30 December 2008 dismissed the appeal. In addition, the Court of Appeal also refused leave to appeal to the House of Lords, and declined to extend the injunction against the appellants’ transfer to the Iraqi police. As Professor William A. Schabas and Dr Antoine Buyse report at their respective blogs, the appellants were then swiftly handed over to the Iraqis – this despite an interim measure indicated by the European Court of Human Rights.

The Court of Appeal today published its reasons for dismissing the appeal: R (Al-Saadoon) v Secretary of State for Defence [2009] EWCA Civ 7. Those reasons were, in broad outline: (a) the UK did not have jurisdiction over the appellants, so the ECHR did not apply, (b) even if it had done, the obligation not to extradite/transfer was displaced by the fact that the UK was bound to do so, (c) there was no (regional) customary international law in Europe against the transfer of persons to a risk of suffering the death penalty, (d) the execution of a sentence of death by hanging did not amount to a crime against humanity.

There’s really only one word for that: Nonsense! Continue reading →

By Tobias Thienel

In a case that has stirred emotions when it first came to the fore, the European Court of Human Rights today had occasion to stress the strong public interest, reflected in domestic as in international law, in the protection of the maritime environment. To the ECtHR, that case is known as Mangouras v Spain; to the rest of the world it is part of the drama resulting from the sinking of the Prestige off Galicia, Spain, in November 2002.

The applicant, Mr Mangouras, had been the captain of the Prestige, and was promptly arrested on being taken to the Spanish shore. A Spanish judge then fixed the amount of bail at a somewhat steep 3,000,000 €. An insurance company came up with the sum fixed, and Mr Mangouras was released from jail after 83 days. That, basically, is what the case in the European Court was about; the applicant argued that the amount of bail was much too high, violating Article 5(3) ECHR (see e.g. Iwanczuk v Poland, para 66).

The case-law mandated that the Court consider the temptation for an accused to absent himself from the proceedings, and whether the amount of bail was proportionate to the aim of counteracting that temptation, thus securing the indictee’s presence at trial. The nature of the offence with which the accused would be charged was therefore relevant, going to the strength of the possible desire to abscond. Against that background, the Court said (my translation; French original after the fold):

"The Court cannot ignore the rising and legitimate concern existing at the European and the international level with regard to crimes against the environment. It notes in this regard the powers and obligations of States concerning maritime pollution and the unanimous interest of States as well as of European and international organisations in identifying those responsible, securing their presence at court proceedings and in punishing them […]. The Court feels that it should take into account the individual circumstances of the case, that is to say, the specific breaches committed in the context of a ‘cascade of responsibilities’ peculiar to the law of the sea and, in particular, to attacks on the maritime environment, and that those circumstances distinguish this case from other cases in which the Court has been called upon to assess the duration of provisional detention."

Continue reading →