P ARTLY DISSENTING OPINION OF JUDGE BRATZA

1. I share the view of the Chamber that there has been a violation of Article 3 of the Convention in the present case and that, having regard to this finding, it is not necessary to decide whether there have additionally been violations of Article 2 of the Convention or Article 1 of Protocol No. 13.

2. It was expressly accepted by the Divisional Court and by the Court of Appeal that, taking the evidence as a whole, substantial grounds had been shown for believing that there was a real risk that the applicants would be condemned to the death penalty and executed if they were transferred into the custody of the Iraqi High Tribunal (IHT), no sufficient guarantees having been obtained that such a penalty would not be sought or imposed for the offences with which they were charged. This conclusion is not affected by the fact that, in the result, the charges of murder against the applicants were reduced and replaced by charges which did not carry the death penalty or that, in September 2009, the IHT set aside all the charges against the applicants on the ground of insufficiency of evidence. The Court has previously held that it is not precluded from having regard to information which comes to light subsequent to the surrender or expulsion of a person, such information being of potential value in confirming or refuting the appreciation made by the Contracting State of the well-foundedness or otherwise of an applicant ’ s fears ( see Vilvarajah and Others v. the United Kingdom , 30 October 1991, § 107, Series A no. 215 , and Mamatkulov and Askarov v. Turkey [GC] , nos. 46827/99 and 46951/99, § 69 , ECHR 2005-I ). However, since the nature of a Contracting State ’ s responsibility under Article 3 in cases of the present kind lies in the acts of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or might have been known to the Contracting State at the time of surrender or expulsion. Moreover, as pointed out in the judgment, the applicants ’ case has in any event been recently remitted by the Court of Cassation for reinvestigation and retrial, with the consequence that the risk faced by them at the time of their surrender has not been finally dispelled.

3. In concluding that the Government were in breach of their obligations under Article 3 in the present case, the Chamber has focused not merely on the circumstances in December 2008 when the applicants were physically transferred to the custody of the Iraqi authorities without any assurance that they would not be subjected to the death penalty , but on the acts and omissions of the United Kingdom authorities in the period following the applicants ’ arrest and detention as security internees in 2003 and prior to the referral of their cases to the Iraqi courts without the necessary assurances.

4. I fully endorse this latter basis for attaching responsibility to the Government under Article 3. The applicants were initially classified as “security internees”, their notices of internment recording that they were suspected of being senior members of the Ba ’ ath Party under the former regime and of orchestrating anti- Multinational Force (MNF) violence by former regime elements and that, if released, they would represent an imperative threat to security. It was the Special Investigation Branch of the United Kingdom ’ s Royal Military Police which, following an investigation into the deaths of the two British servicemen carried out between March 2003 and October 2004, found evidence implicating the applicants in their killing. In June 2004 the occupation of Iraq came to an end and in August of that year the death penalty was reintroduced into the Iraqi Penal Code in respect of a number of offences, including murder. It is clear from the evidence before the Court, notably the internal Divisional Internment Review Committee minutes referred to in paragraph 44 of the judgment, that extensive negotiations took place between the United Kingdom and Iraqi authorities in the period from July 2004 until the formal reference of the cases against the applicants to the Chief Investigation Judge of the Central Criminal Court of Iraq (CCCI) in December 2005. It is apparent from that evidence that, at least in the initial stages, there were hesitations on the part of the Iraqi authorities about undertaking the prosecution of the applicants in such a high - profile case. At the same time, there were continuing concerns on the part of the United Kingdom authorities that if the applicants were to be transferred to the Iraqi courts for trial the death penalty could be imposed. These concerns were, in particular, reflected in the minute of 3 May 2005 in which guidance was sought “on the safeguards that could be imposed before transferring the case to the CCCI especially in light of the potential death penalty difficulties”.

5. Despite this clear appreciation of the risk that the death penalty would be imposed if the applicants were transferred to an Iraqi court and convicted of murder and despite the opportunities which were offered by the discussions at that time, it does not appear that any efforts were made by the United Kingdom authorities either to negotiate alternative arrangements for the trial of the two applicants which would not involve the risk of the death penalty or to secure the necessary safeguards before the applicants ’ cases were formally referred to the Iraqi courts in December 2005. In particular, as noted in the judgment ( see paragraph 141), despite the binding obligations of the United Kingdom under the Convention and Protocol No. 13, no attempt was made to seek either a general assurance that individuals transferred from the physical custody of the British a rmed f orces to the Iraqi authorities would not be subjected to the death penalty or a specific assurance that the two applicants would not be at risk of capital punishment if their cases were referred to the Iraqi courts for trial. The first efforts which, indeed, appear to have been made to obtain such an assurance on the applicants ’ behalf were made in mid-2008, after the applicants ’ cases had been referred, after they had been reclassified by the United Kingdom authorities as “criminal detainees” in May 2006 and after the IHT had made its first of several repeated requests for the transfer of the applicants in December 2007.

6. It was, in my view, this failure on the part of the United Kingdom authorities in the period prior to the referral of the applicants ’ cases to the Iraqi courts, which itself led to the eventual surrender of the applicants to those courts in December 2008, that gave rise to a breach of the State ’ s obligations under Article 3 of the Convention.

7. By the time of the applicants ’ eventual surrender, the situation had radically changed. The United Nations m andate for the presence of the MNF, including the British contingent, expired on 31 December 2008. Following the expiry of the m andate, there remained under international law, as the Court of Appeal held, “no trace or colour of any power or authority whatever for the MNF, or any part of it, to maintain any presence in Iraq save only and strictly at the will of the Iraqi authorities” ( § 34; see paragraph 71 of the judgment ) and there existed “no sensible room for doubt but that the terms on which British f orces would be permitted to remain in Iraq by the Iraqi authorities would not encompass any role or function which would permit, far less require, British (or any other) forces to continue to hold detainees” ( § 35; see paragraph 71 of the judgment ). Had they done so, the Iraqi authorities would have been entitled to enter the premises occupied by the British and recover any such persons so detained ( § 36; see paragraph 71 of the judgment ).

8. The judgment of the Chamber rejects the Government ’ s argument that by 31 December 2008 they had no option but to respect Iraqi sovereignty and transfer the applicants, who were Iraqi nationals held on Iraqi territory, to the custody of the Iraqi courts, when so requested. Reliance is placed in the judgment on the Court ’ s case-law to the effect that it is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention and that the obligation under Article 3 not to surrender a fugitive to another State where substantial grounds exist for believing that he would be subjected to treatment or punishment contrary to that Article overrides any treaty obligations which might have been concluded after the entry into force of the Convention.

9. While I in no way question these general principles laid down in the Court ’ s case-law, I am not persuaded that they have any direct application to the special circumstances of the present case, where the two applicants were held by a contingent of a multinational force on foreign sovereign territory, whose mandate to remain on that territory had expired and who had no continuing power or authority to detain or remove from the territory nationals of the foreign sovereign State concerned.

10. It is these considerations which have led me to dissent from the majority of the Chamber in their finding that there have also been violations of Articles 13 and 34 of the Convention.

11. The general principles governing Article 34 have been set out most recently in the Court ’ s Paladi judgment ( see Paladi v. Moldova [GC], no. 39806/05, 10 March 2009). Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with interim measures indicated by the Court under Rule 39 of the Rules of Court. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with, or in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation. The question whether there is such an “objective impediment” has to be assessed in each case with reference to the legal and factual circumstances which prevailed at the time Rule 39 was applied, the respondent State not being required to take measures which are not within its powers.

12. The circumstances of the present case were in my view exceptional. An application for interim measures was lodged with the Court by the applicants on 22 December 2008, some nine days before the United Kingdom ’ s m andate expired and three days after the Divisional Court had delivered judgment in the applicants ’ judicial review proceedings challenging the legality of their proposed transfer to the Iraqi authorities. Although the referral of the applicants ’ cases to the Iraqi courts had taken place in December 2005 and the IHT had first requested the applicants ’ transfer into its custody in December 2007, it was not until 12 June 2008 that the applicants commenced the judicial review proceedings. The proceedings were undoubtedly of some complexity and were dealt with by the domestic courts with expedition: the hearing before the Divisional Court took place over three days from 18 to 20 November 2008 and the lengthy judgment of the court was delivered one month later. The applicants ’ appeal to the Court of Appeal was fixed for a substantive hearing on 29 and 30 December 2008, less than ten days after the appeal had been lodged and on the second day of the hearing the appeal was dismissed by the Court of Appeal, which gave short reasons for its decision, indicating that its full judgment would follow. As set out in paragraph 67 of the present judgment, it was the unanimous view of the Court of Appeal that after 31 December 2008, the United Kingdom was entirely legally powerless to take action other than in compliance with the wishes of the IHT or to resist any action taken by the Iraqi authorities. The Court of Appeal accordingly lifted the injunction which had prevented the applicants ’ transfer until 4.30 p . m . on the same day. Shortly after being informed of the ruling of the Court of Appeal, interim measures were applied by the Court under Rule 39 of the Rules of Court, informing the Government that the applicants should not be removed or transferred from the custody of the United Kingdom until further notice.

13. The majority of the Chamber have found the Government ’ s non-compliance with the Rule 39 indication to be unjustified on two principal grounds. It is said that there was no “objective impediment” to compliance with the interim measures since the absence on 31 December 2008 of any available course of action consistent with respect for Iraqi sovereignty other than the transfer of the applicants was of the respondent State ’ s own making. Secondly, it is said that the Government have not satisfied the Court that they took all reasonable steps, or indeed any steps, to seek to comply with the Rule 39 indication, not having informed the Court of any attempt to explain the situation to the Iraqi authorities or to reach a temporary solution which would have safeguarded the applicants ’ rights until the Court had completed its examination.

14. I am not convinced by either of these points. As to the former, the question whether there was an objective impediment to compliance with an interim measure must be assessed at the time when the measure was applied, in this case 30 December 2008. At that time there existed, as the Court of Appeal found, an objective legal impediment to continuing to detain the applicants and refusing to surrender them to the Iraqi authorities. The fact that, had the United Kingdom obtained the necessary assurances from those authorities some four years before, the applicants could have been safely transferred in December 2008, while undoubtedly relevant in the context of the complaint under Article 3 of the Convention, does not in my view affect the question which falls to be examined under Article 34. As to the latter point, while there are strong reasons to believe that the relevant assurances could have been obtained before the referral of the applicants ’ case to the Iraqi courts, the lack of success of the efforts made after June 2008 would clearly suggest that there was no realistic prospect of obtaining such assurances or achieving a temporary solution at a time when the expiry of the m andate was imminent, a point confirmed by the evidence of Mr Watkins before the Divisional Court and the Court of Appeal (see paragraphs 56 and 66 of the judgment ).

15. For these reasons, while agreeing that in the circumstances of this case the surrender of the applicants violated their rights under Article 3, I would not find it either necessary or appropriate to hold that there had additionally been a violation of Article 34 of the Convention.

16. The claim under Article 13 i s, as appears from paragraph 166 of the judgment, essentially accessory to that under Article 34, it being argued that the transfer of the applicants in non-compliance with the interim measures had nullified the effectiveness of any appeal to the House of Lords. For substantially the same reasons as I have indicated above, I would not find an additional violation of Article 13 in the present case.

17. As to the applicants ’ complaints under Article 6 of the Convention, I share the conclusion and reasoning of the Chamber and have nothing to ad d.