HASSAN v. THE UNITED KINGDOM – JUDGMENT
15
G. Correspondence with Treasury Solicitors and legal proceedings
30. The applicant remained in hiding in Iraq until October 2006, when
he crossed the border to Syria. In November 2006, through a representative
in Syria, he made contact with solicitors in the United Kingdom. The
applicant’s solicitors wrote to the Government’s Treasury Solicitors on
21 December 2006 requesting explanations for the arrest and detention of
Tarek Hassan and the circumstances that resulted in his death. It took some
time to identify the applicant’s brother, because he was entered in the Camp
Bucca databases under the name “Tarek Resaan Hashmyh Ali” (see
paragraph 18 above). However, in a letter dated 29 March 2007 Treasury
Solicitors stated that a check of the United Kingdom’s prisoner of war
computer records had produced a record of Tarek Resaan Hashmyh Ali
being detained at Camp Bucca. In a further letter dated 5 April 2007
Treasury Solicitors stated that further computer records had been recovered
which “confirm the handover” of Tarek Hassan from the United Kingdom
authorities to the United States authorities at Camp Bucca and which
recorded his release on 12 May 2003.
31. The applicant commenced proceedings in the High Court on 19 July
2007 seeking declarations in respect of breaches of his brother’s rights
under Articles 2, 3 and 5 of the Convention, as set out in Schedule 1 to the
Human Rights Act 1998, financial compensation and an order requiring the
Government to initiate an independent and public investigation into the fate
of the deceased after he was detained by British forces on 22 April 2003.
The claim was heard on 19 and 20 January 2009 and was rejected in a
judgment delivered by Walker J on 25 February 2009 ([2009] EWHC 309
(Admin)). The judge held that, in the light of the judgment of the House of
Lords in Al-Skeini (see further the summary of the House of Lords’
judgment in Al-Skeini v. the United Kingdom, cited above, §§ 83-88), it
could not be said that Tarek Hassan was within the United Kingdom’s
jurisdiction under Article 1 of the Convention at any time. In Al-Skeini the
House of Lords had recognised a number of exceptions to the general rule
that a State did not exercise jurisdiction extra-territorially, but these did not
include detention of a person unless this took place within a military prison
or other comparable facility controlled by the Contracting State. The judge’s
analysis of the MOA (see paragraph 16 above) indicated that Camp Bucca
was a United States rather than a United Kingdom military establishment,
for the following reasons:
“... It is plain that the detaining power [the United Kingdom] relinquishes, until such
time as it requires return of the individual in question, responsibility for maintaining
and safeguarding those transferred. Accountability in that regard is the responsibility
of the accepting power [the United States]. As regards adjudications concerning the
individual’s contact after transfer to the accepting power the detaining power
relinquishes to the accepting power primary jurisdiction. Overall this amounts to a
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