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Success at Court of Appeal for Afghan detainee

Lawyers at law firm Leigh Day & Co have successfully appealed on behalf of a 24-year-old Afghan man, who is currently imprisoned in one of Afghanistan’s most notorious jails.

23 July 2012

Lawyers at law firm Leigh Day & Co have successfully appealed on behalf of a 24-year-old Afghan man, who is currently imprisoned in one of Afghanistan’s most notorious jails, that a hearing should be held into whether he had a fair trial at the hands of the Afghan courts. 

They successfully argued that a hearing should be held into whether the UK authorities breached his Article 6 rights under the Human Rights Act - the right to a fair trial - by transferring him from UK custody to that of the NDS in Afghanistan, in the knowledge that there was a real risk his right to a fair trial would be breached. 

This will be the first time UK courts will consider whether it is lawful to hand over detainees to the NDS to face such a trial which lawyers have described as ‘a flagrant denial of justice’.
In a hearing on 15 May 2012, Mr Justice Collins granted permission for Serdar Mohammed to apply for judicial review of the legality of his detention by British forces in Afghanistan, his subsequent handover to the Afghan authorities, and the practice of the Secretary of State of transferring other detainees into the custody of the Afghan Government in the future. The judicial review is expected to take place later this year.
However, Mr Justice Collins refused permission in relation to two aspects of Mr Mohammed’s claim, both concerning alleged breaches of ECHR Article 6, the right to a fair trial. This involved his transfer into the custody of the Afghan authorities on 25 July 2010 to face a trial under the Afghan courts system and any future transfers of detainees into the custody of the Afghan authorities to face such a trial.
Today’s judgment reverses this decision and ensures that the judicial review, expected later this year, will include consideration into whether or not it was lawful to transfer Mr Mohammed in view of the risk he would not have a fair trial.
The British Military detained Serdar Mohammed, a married man with two sons, in April 2010 while he was irrigating his family’s field in Helmand Province.
Three months later he was handed over to the NDS at whose hands he claims he was severely tortured before ‘signing’ a confession under duress and being tried in Court as a member of the Taliban. He is currently serving 10 years in an Afghan jail after a trial lasting 15 minutes conducted in a language he didn’t understand.
Leigh Day & Co claim the decision by British Forces to detain Mr Mohammed and transfer him to Lashkar Gah prison was unlawful and in breach of his human rights.
They are also looking for clarity on the transfer of detainees to the NDS at a time when the transition of power and the rule of law are seen as key to foreign troops leaving the country.

Mr Mohammed claims he was beaten with sticks and electric cables, hooded, suspended by one hand and shackled in excruciating positions for prolonged periods. On one occasion, his torturers wrenched and twisted his testicles so hard that blood came out of his penis.
Mr Mohammed’s case has already resulted in a moratorium being put in place on all transfers of prisoners from British Forces to NDS facilities in Kabul, Khandahar and Lashkar Gah.
Rosa Curling from the Human Rights team at Leigh Day & Co said:

“It is extremely important that the UK courts properly consider whether it is lawful for the UK authorities in Afghanistan to hand over detainees in their custody to the NDS.
“Our client’s case clearly shows that the Afghan legal system falls way below international standards. By transferring Mr Mohammed to the NDS, the UK acted in breach of its obligations under human rights law, resulting in our client suffering a flagrant denial of justice.”  

Cori Crider, Legal Director at Reprieve, said:

It’s quite right that the UK courts should investigate what happens to British detainees after their handover – when the answer seems to be ‘trials’ that last a quarter of an hour, in which your tortured confession is discussed in a language you don’t speak. This decision offers a ray of hope to Mr Mohammed, and to all other conflict detainees currently trapped in the Afghan court system.

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