Judgment Abdulaal Naser and Others v. Denmark - Denmark had no jurisdiction in respect of complaints of ill-treatment during search and arrest operation in Iraq

issued by the Registrar of the Court   ECHR 243 (2025)   21.10.2025   Denmark had no jurisdiction in respect of complaints of ill-treatment during   search and arrest operation in Iraq   The case of Abdulaal Naser and Others v. Denmark (application no. 46571/22) concerned a military   search and arrest operation on 25 November 2004 in Az Zubayr, outside Basra (Iraq). Danish Military   forces had participated in the operation at the request of the Iraqi authorities.   Investigations in Denmark into subsequent allegations of ill-treatment by Danish soldiers in   connection with that operation were discontinued on the basis that no criminal offence had been   committed. Civil proceedings for compensation instituted by the applicants, 21 Iraqi nationals, were   ultimately unsuccessful, the Supreme Court finding that Denmark had no jurisdiction in respect of   their complaints.   In today’s Chamber judgment1 in the case, the European Court of Human Rights held, unanimously,   that the applicants’ complaints under Article 3 (prohibition of torture or inhuman or degrading   treatment) were inadmissible because the applicants had not been within Denmark’s jurisdiction.   The Court also found that there had been no violation of Article 6 (right to a fair trial) of the   European Convention on Human Rights. The applicants had been given access to a court at two   levels of jurisdiction and those proceedings had been fair.   Principal facts   The applicants are 21 Iraqi nationals who were born between 1952 and 1981.   After the war in Iraq ended in the spring of 2003, a UN Security Council resolution laid down a   general framework for the continued presence of the multinational security forces in Iraq. Denmark   contributed to the continued presence of international coalition forces in Iraq from 2003 to 2007.   The Danish domestic law required Danish forces to be on the alert for any unlawful acts committed   by the Iraqi authorities and to report any such acts and, depending on the circumstances, to seek to   intervene.   On 25 November 2004, at the request of the Iraqi authorities, Danish and British military forces   participated in an Iraqi search and arrest operation in Az Zubayr, outside Basra. Reports indicate that   the Iraqi security forces arrested and detained a total of 36 people.   Independent investigations into allegations of ill-treatment of detainees during that operation were   carried out in 2010, 2012 and 2015 in Denmark and were discontinued on the basis that it did not   appear that any criminal offences had been committed.   The applicants instituted a civil claim for compensation and in June 2018 the Eastern High Court   (Østre Landsret) allowed the claim in part. It found that some of the applicants had been subjected   to inhuman treatment during their transfer or detention at the Al Jameat police station. The court   found that although the police station in question had been controlled by the Iraqi government,   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   Danish forces ought to have known that there had been a general risk that people might be ill-   treated there.   In May 2022 the Supreme Court upheld in part an appeal by the Ministry of Defence and dismissed   the applicants’ claims. The court agreed with the High Court’s findings of fact, including that the   Danish forces had not had command of the Iraqi military or police forces and had not participated in   the detention of the applicants. Based on those findings the Supreme Court found that Denmark had   no jurisdiction over the applicants within the meaning of the Convention and that therefore there   had been no breach of Article 3 of the Convention. It also dismissed the applicants’ complaints under   Article 6.   Complaints, procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 29 September 2022.   Comments were submitted by the Governments of Norway and France, who had been granted leave   to intervene by the President of the Section.   Relying on Article 3 (prohibition of torture or inhuman or degrading treatment) of the European   Convention on Human Rights the applicants complained that they had been subjected to ill-   treatment by Danish soldiers during the operation of 25 November 2004 and that the Danish State   was liable under Article 1 (obligation to respect human rights) because the applicants fell within its   extraterritorial jurisdiction. The applicants also complained of another breach of Article 3 because   the Danish authorities had failed to undertake an independent and adequate investigation of their   detention and treatment. Lastly, relying on Article 6 (right to a fair trial) the applicants complained   that the proceedings before the domestic courts had been unfair and had exceeded the reasonable-   time requirement.   Judgment was given by a Chamber of seven judges, composed as follows:   Lado Chanturia (Georgia), President,   Faris Vehabović (Bosnia and Herzegovina),   Lorraine Schembri Orland (Malta),   Anja Seibert-Fohr (Germany),   Ana Maria Guerra Martins (Portugal),   Anne Louise Bormann (Denmark),   András Jakab (Austria),   and also Simeon Petrovski, Deputy Section Registrar.   Decision of the Court   Article 3 (prohibition of torture and inhuman or degrading treatment/investigation)   The Court had to determine whether the applicants fell under Denmark’s jurisdiction under Article 1   of the Convention. Where a State, through its agents, exercised control and authority over an   individual, and thus jurisdiction, the State was under an obligation under Article 1 to secure to that   individual, rights and freedoms guaranteed under the Convention.   The Court examined whether, based on the facts, the Danish State, through its agents, had exercised   control over the applicants. Having heard extensive evidence, both the High Court and the Supreme   Court had concluded that the Iraqi forces had had full control of the operation. More specifically, no   Danish forces had participated in the detention of the applicants. Moreover, neither Danish forces   nor the forces under their operational control had subjected the applicants to inhuman treatment.   Having regard to the very detailed and thorough assessments carried out by the High Court and the   2 Supreme Court based on the extensive evidence presented to them, the Court found that the   applicants had failed to substantiate any elements or shortcomings which could lead it to depart   from the domestic courts’ findings of fact.   The Court was not satisfied that the applicants had been within the jurisdiction of Denmark for the   purposes of Article 1 of the Convention. It followed that the applicants’ complaints of ill-treatment   under Article 3 were inadmissible.   The Court went on to examine the applicants’ complaints concerning the Danish authorities’   investigation into their allegations. It noted that three independent investigations had been carried   out, which had found on all three occasions that there had been no reason to bring charges against   Danish soldiers. Each time new information had come to light about alleged ill-treatment of the   detained persons during the operation, whether via the media or by the disclosure of new evidence,   it had immediately prompted an investigation or a re-investigation of the case.   The Court found it doubtful that the applicants had been within the jurisdiction of Denmark in   respect of the procedural obligation under Article 3 to carry out an effective investigation, but even   if they had been, there was no indication that the Danish authorities had failed to carry out an   effective investigation or as argued by the applicants, that the investigation had been flawed.   The procedural aspect of Article 3 was inadmissible.   Article 6 (right to a fair trial)   The Court noted that the applicants had been granted free legal aid for the proceedings before both   the High Court and the Supreme Court and they had been represented throughout by counsel. They   had not pointed to any decisions of the domestic courts refusing to allow them to give evidence, nor   had they specified what evidence they had allegedly been prevented from submitting in a timely   manner. In the Court’s view the applicants had not substantiated their assertion that not having had   access to free legal aid to cover their travel expenses to be present during the entire trial had been   arbitrary or disproportionate. As regards the non-disclosure of certain information, the Court noted   that it had primarily been names that had been redacted and the applicants had failed to explain and   substantiate why or how that very limited redacted information had been essential for their case.   The Court concluded that the applicants had been given access to a court, at two levels of   jurisdiction, for their compensation claim, and that the proceedings had been fair, the adversarial   principle and the principle of equality of arms having been complied with.   Article 13 (right to an effective remedy)   There existed no arguable claim under Article 13 of the Convention, the Court finding no indication   that the Danish authorities had failed to carry out an effective investigation as required by Article 3   of the Convention. This part of the complaint was inadmissible.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. 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