EHRM, 14-01-2014, nr. 34356/06

On 15 March 2001, while he was living and working in the Kingdom of Saudi Arabia, Mr Jones was slightly injured when a bomb exploded outside a bookshop in Riyadh. He alleges that the following day he was taken from hospital by agents of Saudi Arabia and unlawfully detained for 67 days. During that time he was tortured by a Lieutenant Colonel Abdul Aziz. In particular, he alleges he was beaten with a cane on his palms, feet, arms and legs; slapped and punched in the face; suspended for prolonged periods by his arms; shackled at his ankles; subjected to sleep deprivation and given mind-altering drugs.

Mr Jones returned to the United Kingdom where a medical examination found he had injuries consistent with his account and where he was diagnosed with severe post-traumatic stress disorder.

On 27 May 2002 Mr Jones commenced proceedings in the High Court against ‘the Ministry of Interior the Kingdom of Saudi Arabia’ and Lieutenant Colonel Abdul Aziz, claiming damages inter alia for torture. In the particulars of claim he referred to Lieutenant Colonel Abdul Aziz as a servant or agent of Saudi Arabia. Service was effected on Saudi Arabia via its then solicitors, but the solicitors made it clear that they had no authority to accept service of the claim on Lieutenant Colonel Abdul Aziz.

On 12 February 2003 Saudi Arabia applied to have the claim struck out on the grounds that it, and its servants and agents, were entitled to immunity and that the English courts had no jurisdiction. Mr Jones applied for permission to serve the claim on Lieutenant Colonel Abdul Aziz by an alternative method. In his judgment of 30 July 2003, a Master of the High Court held that Saudi Arabia was entitled to immunity under section 1(1) of the State Immunity Act 1978 (‘the 1978 Act’: see paragraph 39 below). He also held that Lieutenant Colonel Abdul Aziz was similarly entitled to immunity under that Act and refused permission to allow service by an alternative method. Mr Jones appealed to the Court of Appeal.

Mr Mitchell and Mr Sampson were arrested in Riyadh in December 2000; Mr Walker was arrested there in February 2001. All three applicants alleged that, while in custody, they were subjected to sustained and systematic torture, including beatings about the feet, arms, legs and head, and sleep deprivation. Mr Sampson alleged he was anally raped. The applicants were released and returned to the United Kingdom on 8 August 2003. Each obtained medical reports which concluded that their injuries were consistent with their accounts.

The applicants decided to commence proceedings in the High Court against the four individuals they considered to be responsible: two policemen, the deputy governor of the prison where they were held, and the Minister of the Interior who was alleged to have sanctioned the torture. They therefore applied for permission to serve their claim on the four individuals out of the jurisdiction. On 18 February 2004 this was refused by the same Master who had heard Mr Jones' claim, on the basis of his previous ruling in respect of Mr Jones. But the Master acknowledged that he had enjoyed the benefit of fuller argument than on the applications relating to Mr Jones' claim, and said:

The applicants appealed to the Court of Appeal with the leave of the Master.

14. The two cases were joined and on 28 October 2004 the Court of Appeal published its judgment. It unanimously dismissed Mr Jones' appeal from the decision of the Master to refuse permission to serve Saudi Arabia outside the jurisdiction. However, it allowed the appeals in respect of the refusal of permission in each case to serve the individual defendants.

As regards the immunity of Saudi Arabia, Lord Justice Mance, with whom Lord Phillips and Lord Justice Neuberger agreed, refused to depart from this Court's ruling in Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI. He further found that Article 14(1) of the United Nations Convention Against Torture (see paragraph 63 below), which obliges a Contracting State to ensure that a victim of an act of torture obtains redress, could not be interpreted as imposing an obligation on a State to provide redress for acts of torture when those acts were committed by another State in that other State.

In respect of the immunity of the individual defendants, Lord Justice Mance considered the case-law of the domestic courts and courts of other jurisdictions, which recognised State immunity ratione materiae in respect of acts of agents of the State. However, he noted that none of these cases was concerned with conduct which was to be regarded as outside the scope of any proper exercise of sovereign authority or with international crime, let alone with systematic torture. He did not accept that the definition of torture in Article 1 of the Convention against Torture as an act ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’ (see paragraph 59 below) was fatal to the applicants' claims:

Lord Justice Mance did not consider it significant that Lieutenant Colonel Abdul Aziz had been described in Mr Jones’ claim as the ‘servant or agent’ of Saudi Arabia. Nor did he accept that general differences between criminal and civil law justified a distinction in the application of immunity in the two contexts. He noted that the House of Lords in Pinochet (No. 3) (see paragraphs 44–56 below) had considered that there would be no immunity from criminal prosecution in respect of an individual officer who had committed torture abroad in an official context. It was not easy to see why civil proceedings against an alleged torturer could be said to involve a greater interference in the internal affairs of a foreign State than criminal proceedings against the same person. It was also incongruous that if an alleged torturer was within the jurisdiction of the forum State, he would be prosecuted pursuant to Article 5(2) of the Convention against Torture (see paragraph 62 below) and no immunity could be claimed, but the victim of the alleged torture would be unable to pursue any civil claim. Furthermore, there was no basis for assuming that, in civil proceedings, a State could be made liable to indemnify or otherwise support one of its officials proved to have committed systematic torture.

18. Mance LJ considered that whether any claim in the English courts against individuals could proceed was better determined not by reference to immunity but by reference to whether it was appropriate for the English courts to exercise jurisdiction. A number of factors were relevant to the assessment of this question, including the sensitivity of the issues involved and the general power of the English courts to decline jurisdiction on the grounds that England was an inappropriate forum for the litigation.

In considering the impact of Article 6, Lord Justice Mance found important distinctions between a State's claim to immunity ratione personae, at issue in Al-Adsani; and a State's claim to immunity ratione materiae in respect of its officials, at issue in the present cases. First, he considered it impossible to identify any settled international principle affording the State the right to claim immunity in respect of claims directed against an official, rather than against the State or its head or diplomats. He was of the view that the legislation and case-law of the United States (see paragraphs 112–125 below) militated strongly against any such settled principle and supported a contrary view. In so far as counsel for the Government purported to refer to evidence of settled practice, Mance LJ noted that the case-law to which he had referred related either to the immunity of the State itself or to the immunity of individual officials for alleged misconduct that bore no relationship in nature or gravity to the international crime of systematic torture. He considered the dicta in the separate opinion of Judges Higgins, Kooijmans and Buergenthal to the judgment of the International Court of Justice in the Arrest Warrant case (see paragraphs 84–85 below) to provide further confirmation that there was no settled international practice in this area.

Mance LJ explained that where, under Article 14 of the Convention against Torture, a State had created a domestic remedy for torture in the State where that torture was committed, other national courts could be expected to refuse to exercise jurisdiction. But, where there was no adequate remedy in the State where the systematic torture occurred, it might be regarded as disproportionate to maintain a blanket refusal of recourse to the civil courts of another jurisdiction. He acknowledged that the courts of one State were not to adjudicate lightly upon the internal affairs of another State, but considered that there were many circumstances, particularly in the context of human rights, where national courts did have to consider and form a view on the position in, or conduct of, foreign States.

Lord Justice Mance concluded that giving blanket effect to a foreign State's claim to State immunity ratione materiae in respect of a State official alleged to have committed acts of systematic torture could deprive the right of access to a court under Article 6 of real meaning in a case where the victim of torture had no prospect of recourse in the State whose officials committed the torture. He therefore allowed the applicants' appeals in respect of the individual defendants and remitted them for further argument, concluding:

In his concurring judgment, Lord Phillips agreed with the conclusions of Mance LJ as regards both the claim against Saudi Arabia and the claims against the individual officials. In particular, he considered that the judgment in Pinochet (No. 3) (see paragraphs 44–56 below) had shown that torture could no longer fall within the scope of the official duties of a State official. It therefore followed that if civil proceedings were brought against individuals for acts of torture in circumstances where the State was immune from suit, there could be no suggestion that the State would be vicariously liable: it was the personal responsibility of the individuals, not that of the State, which was in issue.

On the approach of this Court, he commented:

24. Saudi Arabia appealed to the House of Lords against the decision of the Court of Appeal in respect of the individual defendants and Mr Jones appealed against the decision of the Court of Appeal in respect of his claim against Saudi Arabia itself. On 14 June 2006, the House of Lords unanimously allowed Saudi Arabia's appeal and dismissed the appeal by Mr Jones.

Lord Bingham considered that there was a ‘wealth of authority’ in the United Kingdom and elsewhere to show that a State was entitled to claim immunity for its servants or agents and that the State's right to immunity could not be circumvented by suing them instead. In some borderline cases there could be doubt whether the conduct of an individual, although a servant or agent, had a sufficient connection with a State to entitle it to claim immunity for his conduct. But, in his view, these were not borderline cases. Lieutenant Colonel Abdul Aziz was sued as a servant or agent of Saudi Arabia and there was no suggestion that his conduct was not in discharge or purported discharge of his duties. The four defendants in the second case were public officials and the alleged conduct took place in public premises during a process of interrogation.

Further, referring to the International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts (‘Draft Articles on State Responsibility’: see paragraphs 107–109 below), Lord Bingham said that ‘international law does not require, as a condition of a State's entitlement to claim immunity for the conduct of its servant or agent, that latter should have been acting in accordance with his instructions or authority’. The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity.

In order to succeed in their Convention claim, Lord Bingham explained that the applicants had to establish three propositions. First, they had to shows that Article 6 of the Convention was engaged by the grant of immunity; Lord Bingham was prepared to assume, based on this Court's judgment in Al-Adsani, cited above, that it was. Second, they had to show that the grant of immunity denied them access to court; Lord Bingham was satisfied that it plainly would. Third, the applicants had to show that the restriction was not directed to a legitimate objective and was disproportionate.

Lord Bingham disagreed with the applicants' submission that torture could not be a governmental or official act since, under Article 1 of the Convention against Torture, torture had to be inflicted by or with the connivance of a public official or other person acting in an official capacity (see paragraph 59 below). Although the applicants referred to a substantial body of authority showing that the courts of the United States would not recognise acts performed by individual officials as being carried out in an official capacity for the purposes of immunity if those acts were contrary to a jus cogens prohibition, Lord Bingham found it unnecessary to examine those authorities since they were only important to the extent that they expressed principles widely shared and observed among other nations. However, as Judges Higgins, Kooijmans and Buergenthal had stated in their concurring opinion in the Arrest Warrant case, the ‘unilateral’ US approach had not attracted the ‘approbation of States generally’ (see paragraph 84 below).

Concerning the applicants' reliance on the recommendation of the United Nations Committee Against Torture of 7 July 2005 in respect of Canada, comments made in the judgment of the International Criminal Tribunal for the Former Yugoslavia in Furundzija, and the judgment of the Italian Court of Cassation in Ferrini v. Germany (see, respectively, paragraphs 66, 82 and 140 below), Lord Bingham considered the first to be of slight legal authority, the second to be an obiter dictum and the third not to be an accurate statement of international law.

Lord Bingham identified four arguments advanced by Saudi Arabia which he said were ‘cumulatively irresistible’. First, given the conclusion of the International Court of Justice in the Arrest Warrant case, the applicants had to accept that State immunity ratione personae could be claimed for a serving foreign minister accused of crimes against humanity. It followed that the prohibition of torture did not automatically override all other rules of international law. Second, Article 14 of the Convention against Torture did not provide for universal civil jurisdiction. Third, the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (‘the UN Jurisdictional Immunities Convention’: see paragraphs 75–80 below) did not provide any exception from immunity for civil claims based on acts of torture; although such an exception was considered by a working group of the International Law Commission, it was not agreed (see paragraph 79 below). Lord Bingham noted in this respect that although some commentators had criticised the UN Convention because it did not include a torture exception, they nonetheless accepted that this area of international law was ‘in a state of flux’ and did not suggest that there was an international consensus in favour of such an exception. Finally, there was no evidence that States had recognised or given effect to any international-law obligation to exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of international law, nor was there any consensus of judicial or learned opinion that they should. For these reasons, Lord Bingham agreed with the Court of Appeal that the claim brought by Mr Jones against Saudi Arabia was to be dismissed.

In respect of the individual defendants, he found that the conclusion of the Court of Appeal on the torture claims could not be sustained. He considered that the Court of Appeal had incorrectly departed from the position in its previous ruling in Propend that the acts of State officials were to be considered the acts of the State itself (see paragraph 42–43 below). He explained:

Lord Bingham explained that this first error had led the court into a second: its conclusion that a civil claim against an individual torturer did not indirectly implead the State in any more objectionable respect than a criminal prosecution. He observed:

In Lord Bingham's view both errors resulted from a misreading of Pinochet (No. 3) (see paragraph 44–56 below), which concerned criminal proceedings only. The distinction between criminal proceedings (which were the subject of universal jurisdiction) and civil proceedings (which were not) was, he said, ‘fundamental’ and one that could not be ‘wished away’.

Finally, Lord Bingham noted that the Court of Appeal had found that jurisdiction should be governed by ‘appropriate use or development of discretionary principles’. He considered that this was to mistake the nature of State immunity. Where applicable, State immunity was an absolute preliminary bar and a State was either immune from the jurisdiction of a foreign court or it was not, so there was no scope for the exercise of discretion.

Lord Hoffmann, concurring in the judgment, considered that there was no automatic conflict between the jus cogens prohibition on torture and the law of State immunity: State immunity was a procedural rule and Saudi Arabia, in claiming immunity, was not justifying torture but merely objecting to the jurisdiction of the English courts to decide whether it had used torture or not. He quoted with approval the observation of Hazel Fox QC (The Law of State Immunity (2004), p 525) that State immunity did not ‘contradict a prohibition contained in a jus cogens norm but merely divert[ed] any breach of it to a different method of settlement’. For Lord Hoffmann, a conflict could only arise if the prohibition on torture had generated an ancillary procedural rule which, by way of exception to State immunity, entitled a State to assume civil jurisdiction over other States. Like Lord Bingham, he found that the authorities cited showed no support in international law for such a rule.

As regards the application of State immunity to individual defendants, Lord Hoffman indicated that in order to establish that the grant of immunity to an official would infringe the right of access to a court guaranteed by Article 6 of the Convention, it was necessary, as in the case of the immunity of the State itself, to show that international law did not require immunity against civil suit to be accorded to officials who were alleged to have committed torture. He considered that, once again, it was impossible to find any such exception in a treaty. He reviewed in some detail the circumstances in which a State would be liable for the act of an official in international law and found it clear that a State would incur responsibility in international law if one of its officials ‘under colour of his authority’ tortured a national of another State, even though the acts were unlawful and unauthorised. He said:

Lord Hoffman found Mance LJ's conclusion that the Convention against Torture's definition of torture did not lend acts of torture any official character unsatisfactory, explaining:

He also considered inappropriate the Court of Appeal's proposed approach to the exercise of jurisdiction, on the ground that State immunity was not a self-imposed restriction but was ‘imposed by international law without any discrimination between one State and another.’ He concluded that it would be ‘invidious in the extreme for the judicial branch of government to have the power to decide that it will allow the investigation of allegations of torture against the officials of one foreign State but not against those of another’.

39. Part I of the 1978 Act deals with the extent of State immunity in civil proceedings. Section 1 provides:

The remainder of Part I of the Act identifies exceptions from immunity including: submission to the jurisdiction (section 2); commercial transactions and contracts to be performed in the United Kingdom (section 3); contracts of employment (section 4); personal injuries and damage to property ‘caused by an act or omission in the United Kingdom’ (section 5); ownership, possession and use of property (section 6); patents, trade-marks, etc. (section 7); membership of bodies corporate (section 8); arbitrations (section 9); ships used for commercial purposes (section 10); and VAT, customs duties, etc (section 11).

Section 14 provides:

In Propend, the Court of Appeal considered the application of the 1978 Act to the head of the Australian Federal Police Force. The court considered that the defendant benefited from State immunity, explaining:

The court observed that this proposition had wide support in Commonwealth and foreign jurisdictions, citing German, Canadian and US cases.

Pinochet (No. 3) concerned a request by Spain for the extradition of Senator Augusto Pinochet from the United Kingdom to stand trial for crimes, including torture, committed primarily in Chile while he was head of State there. Senator Pinochet and the Government of Chile argued that the Senator enjoyed immunity ratione materiae in respect of the alleged offences. The House of Lords handed down its judgment in March 1999 and held unanimously that the respondent did not benefit from immunity from prosecution in respect of the torture charges.

Lord Browne-Wilkinson observed that if the respondent was not entitled to immunity in relation to the acts of torture, it would be the first time that a local domestic court had refused to afford immunity to a former head of State on the grounds that there could be no immunity against prosecution for certain international crimes. He explained that the adoption of the Convention against Torture was intended to provide for an international system under which the torturer could find no safe haven. He noted the following points of importance:

Turning to the facts of the case, he said:

He was of the view that there was strong ground for saying that the implementation of torture as defined in the Convention against Torture could not be a State function, although he had doubts whether, before the coming into force of the Convention against Torture, the existence of the international crime of torture as jus cogens was enough to justify the conclusion that the organisation of State torture could not constitute the performance of an official function for immunity purposes. He continued:

Lord Browne-Wilkinson considered that if the implementation of a torture regime was a public function giving rise to immunity ratione materiae, this produced bizarre results. Since such immunity extended to all State officials involved in carrying out the functions of the State, and since the international crime of torture under the Convention against Torture can only be committed by an official or someone in an official capacity, all perpetrators of torture would be entitled to immunity. It would follow that there could be no case outside Chile in which a successful prosecution against the respondent for torture could be brought unless Chile were prepared to waive immunity. He concluded:

Lord Hope of Craighead addressed the question whether the concept of official functions included acts of the kind alleged in the case, which were not private acts but acts done in the exercise of State authority. He said:

Lord Hope concluded that following the adoption of the Convention against Torture, it was no longer open to any State that was a signatory to it to invoke immunity ratione materiae in the event of allegations of systemic or widespread torture, which amounted to an international crime, committed after that date. He explained:

Lord Hutton concluded that the clear intent of the Convention against Torture was that an official of one State who had committed torture should be prosecuted if present in another State. He therefore considered that the respondent could not claim that the commission of acts of torture after the Convention's entry into force were functions of the head of State. While the alleged acts of torture by the respondent were carried out under colour of his position as head of State, they could not be regarded as functions of a head of State under international law when international law expressly prohibited torture as a measure which a State could employ in any circumstances whatsoever and had made it an international crime.

Lord Saville of Newdigate agreed that after the entry into force of the Convention against Torture, State immunity ratione materiae for acts of torture could not exist consistently with its terms. It therefore followed that an agreement to an exception to the general rule of State immunity ratione materiae existed between Spain, Chile and the United Kingdom from the date on which the three States became party to that Convention.

Lord Millett held that the definition of torture in the Convention against Torture was entirely inconsistent with the existence of a plea of immunity ratione materiae. He concluded:

He saw a difference between civil and criminal proceedings, explaining:

Lord Phillips of Worth Matravers also commented that the principles of the law of immunity that applied to civil litigation would not necessarily apply to a criminal prosecution. He said that had the Pinochet proceedings been civil in nature, Chile could have argued that it was indirectly impleaded; but that argument did not run where the proceedings were criminal and where the issue was the respondent's personal responsibility, not that of Chile. On the question posed in this case, Lord Phillips, like Lord Saville, considered that State immunity ratione materiae could not co-exist with the notion of international crimes. Since in the case of torture, the only conduct covered by the Convention against Torture was conduct which would be subject to immunity ratione materiae if it applied, the Convention was incompatible with the applicability of such immunity.

Lord Goff of Chieveley, dissenting, considered it clear that if State immunity in respect of torture was excluded in the case, then it could only have been done by the Convention against Torture itself. He did not consider that the well-established principle that a State's waiver of immunity had to be express could be circumvented by finding that torture did not form part of the functions of a State and that no immunity ratione materiae therefore applied to such acts. He highlighted that there was no evidence of any consideration being given to a waiver of State immunity in the negotiations leading to the Convention against Torture. He further pointed out that if immunity ratione materiae were excluded, former heads of State and senior public officials would have to think twice about travelling abroad, for fear of being the subject of unfounded allegations emanating from States of a different political persuasion. He therefore concluded that State immunity applied.

Part 6 of the Civil Procedure Rules for England and Wales regulates service of claims outside the jurisdiction. At the material time, under Rules 6.20 and 6.21, to obtain permission to serve out of the jurisdiction a claimant was required to show that there was a reasonable prospect of success in the claim, to satisfy the court that it was an appropriate case in which discretion should be exercised to permit service and to demonstrate that England and Wales was the appropriate jurisdiction in which to bring the claim.

Pursuant to section 130 of the Powers of Criminal Courts Sentencing Act 2000, a criminal court has the power to make a compensation order for personal injury, loss or damage resulting from a criminal offence. The order is designed for simple and straightforward cases where the amount of compensation can be readily and easily ascertained and where the judge has the necessary evidence before him. It is not designed to replicate civil damages, where quantification of loss may be difficult.

The United Kingdom, Saudi Arabia and 151 other States are parties to the 1984 United Nations Convention Against Torture. Article 1 provides:

Article 2(1) of the Convention requires States to take ‘effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction’.

Article 4 obliges States to ensure that all acts of torture, including an attempt to commit torture or an act which constitutes complicity or participation in torture, are offences under its criminal law.

Article 5 provides:

Article 14 provides:

Upon ratification of the Convention against Torture, the United States lodged a reservation expressing its understanding that Article 14 required a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.

In its conclusions and recommendations of 12 June 2002 in respect of the periodic report submitted by Saudi Arabia (CAT/C/CR/28/5), the Committee Against Torture considered it to be a subject of concern that in Saudi Arabia, there was an apparent failure to provide effective mechanisms to investigate complaints of breaches of the Convention against Torture; and that while mechanisms for the purpose of providing compensation for conduct in violation of the Convention had been instituted, in practice compensation appeared to be rarely obtained and full enjoyment of the rights guaranteed by the Convention was consequently limited.

In its conclusions and recommendations of 7 July 2005 in respect of periodic reports submitted by Canada (CAT/C/CR/34/CAN), the Committee considered it to be a subject of concern that in Canada there was an absence of effective measures to provide civil compensation to victims of torture in all cases. Although compensation was available for torture inflicted in Canada, it was not available where the torture had occurred elsewhere. The Committee recommended that Canada ‘review its position under article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture’.

In its General Comment No. 3 (2012), the Committee considered the implementation of Article 14 by State Parties. On the extent of the right to redress, it noted inter alia:

As to the question of State immunity and obstacles to the right to redress, the Committee said:

In Prosecutor v. Furundzija (1999) 38 ILM 317, the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) held that the prohibition of torture was jus cogens, which articulated the notion that the prohibition had become one of the most fundamental standards of the international community. Similar statements were made in Prosecutor v. Delacic and Others (16 November 1998, case no. IT-96-21-T) and in Prosecutor v. Kunarac (22 February 2001, case nos. IT-96-23-T and IT-96-23/1).

The ILC promulgated the Draft Articles on the State Responsibility in 2001. Article 4 provides for the responsibility of the State for the conduct of its organs:

Pursuant to Article 5, the conduct of a person or entity which is not an organ of the State under Article 4 but which is ‘empowered by the law of that State to exercise elements of the governmental authority’ shall be considered an act of the State under international law, provided the person or entity is ‘acting in that capacity’ in the particular instance. Article 7 provides that acts of State agents in excess of authority or contravention of instructions shall be considered acts of the State under international law.

Finally Article 58 clarifies the position in respect of simultaneous individual responsibility:

The State Immunity Act of 1985 (‘SIA’) establishes the extent to which foreign States can be sued in Canadian courts. It is drafted in terms similar to the US legislation. In particular, in order to benefit from immunity, a defendant must establish that it is a ‘foreign State’ within the meaning of the act and the term ‘foreign State’ includes any sovereign or other head of the foreign state, any government of the foreign State or of any political subdivision of the foreign state, including any of its departments, and any agency of the foreign state.

In Jaffe v. Miller 5 O.R. (2d) 133 the Ontario Court of Appeal held that employees of a foreign State acting in the course of their duties were covered by the notion of ‘State’ in the SIA and thus enjoyed immunity. The fact that the impugned acts were allegedly of an illegal and malicious nature did not take them outside the scope of State immunity.

In Bouzari v. Islamic Republic of Iran (2004) 71 OR (3d) 675, the plaintiff brought a claim against Iran for damages in respect of torture he suffered which was carried out in an Iranian prison. The Ontario Court of Appeal upheld the lower court's finding that the claim was barred by the SIA. The court found that Article 14 of the Convention against Torture (see paragraph 63 above) did not extend to providing the right to a civil remedy against a foreign State for torture committed abroad. The same was true of customary international law: despite the jus cogens nature of the prohibition on torture, no exception to the principle of State immunity existed in respect of torture.

In Hashemi v. Islamic Republic of Iran and Others, the plaintiff was the son of a dual Iranian and Canadian citizen who had been tortured in Iran and had died as a result of her injuries. He sought to bring a civil claim against Iran, the Ayatollah Sayyid Ali Khamenei and two officials whom he named as having participated in the torture of his mother. His claim was dismissed at first instance on the basis that the State of Iran, its head of State and the two officials all enjoyed State immunity under the SIA.

On 15 August 2012 the Quebec Court of Appeal upheld the first instance judgment ((2012) QCCA 1449). The judge examined the judgment of the ICJ in Germany v. Italy (see paragraphs 88-94 above) and accepted on the basis of the ICJ's findings that State immunity could apply even in cases involving acts of torture. He further found that in Canada, unlike in the United States, the legislation was a complete codification of the law on State immunity.

As to whether State immunity was also enjoyed by the two officials under the SIA, the judge said:

On the argument that the actions of the officials, by their nature, prevented them from claiming the benefit of State immunity, the judge said:

He considered that the argument was identical to the one previously raised in Jaffe and that it did not sit well with the notion of torture as defined in various legal instruments including the Convention against Torture. He concluded that Lord Hoffman's opinion in the House of Lords in the applicants' case offered a complete and cogent refutation of the argument that the impugned treatment was ‘so illegal that it must fall outside the scope of official activity’.

Leave to appeal to the Supreme Court has been granted and a hearing is expected in March 2014.

On 21 December 2006 the High Court handed down judgment in Fang v. Jiang ([2007] NZAR 420). The plaintiffs had sought leave to serve proceedings alleging, inter alia, torture, against former members of the Chinese Government. They contended that State immunity did not protect officials from civil claims in respect of torture. The court referred extensively to the House of Lords judgment in the present case and to the relevant international instruments. It held that State immunity incidentally conferred immunity ratione materiae on individuals including former heads of State and anyone else whose conduct in the exercise of the authority of the State was later called into question. There was no exception to State immunity in claims against individuals for torture because the Convention against Torture created an exception for criminal cases only; the UN Jurisdictional Immunities Convention did not contain an exception for torture; and New Zealand common law reflected international law. The court concluded:

Leave to serve proceedings was therefore refused.

The Foreign States Immunities Act of 1985 (‘the Immunities Act’) establishes the extent to which foreign States can be sued in Australian courts. Section 9 of the Immunities Act provides for immunity from jurisdiction and sections 10–20 identify exceptions to section 9. In order to benefit from immunity, a defendant must establish that it is a ‘foreign State’ within the meaning of the act. Section 3(3) clarifies that the term ‘foreign State’ includes the head of a foreign State or of a political subdivision of a foreign State in his public capacity; and the executive government or part of the executive government of a foreign State or a political subdivision of a foreign State.

On 5 October 2010 the Court of Appeal of New South Wales handed down its judgment in Zhang v. Zemin ([2010] NSWCA 255), a civil claim for torture lodged against the former President of China, a department of the Chinese Government and a member of the politburo of the Communist Party of China. It held that individual officers were covered by the Immunities Act, observing that they were entitled to immunity at common law and that the Immunities Act did not change the common law in this respect. As the purposes of the Immunities Act would not be served if civil claims could be lodged against former officials in respect of their conduct while in office, the Act applied to former officials also.

In respect of the claimants’ argument that there was a jus cogens exception under international law, including the argument that acts in violation of jus cogens could not be done in a public or official capacity for the purposes of immunity, the court explained that Australian courts were obliged to apply local statutes even where they conflicted with international law. The Immunities Act clearly established a definitive statement of the immunity afforded and a comprehensive statement of exceptions. It was not possible to infer additional exceptions from international law.

In Ferrini v. Federal Republic of Germany (Decision No. 5044/2004, ILR Vol. 128, p. 658), the Italian Court of Cassation allowed a civil claim brought against Germany in respect of war crimes committed in 1944-45 and rejected immunity as a bar to the claim. The court found that principles of State immunity had to be interpreted in accordance with the universal values embodied in international crimes and jus cogens norms. This Court's judgment in Al-Adsani was distinguished on the basis that in Ferrini the crimes were alleged to have taken place on Italian territory. Other similar judgments were also adopted by Italian courts.

On 23 December 2008 Germany instituted proceedings before the International Court of Justice alleging that the Ferrini judgment, subsequent decisions upholding it and various enforcement measures against German property in Italy failed to respect Germany's jurisdictional immunity under international law. Judgment was handed down in favour of Germany in 2012 (see paragraphs 88–94 above).

The Greek Supreme Court (Areios Pagos) in Prefecture of Voiotia v. Germany, No. 11/2000, 4 May 2000, found that in cases involving gross violations of international law, the State did not enjoy immunity from civil suit.

The Supreme Court later refused to enforce the judgment against Germany on the basis that Germany enjoyed State immunity. It referred, inter alia, to this Court's judgment in Al-Adsani. The Supreme Court judgment was challenged before this Court but the complaint was declared inadmissible in Kalogeropoulou, cited above.

In Natoniewski v. Germany (Ref. No. IV CSK 465/09, 29 October 2010, translated into English in [2010] Polish Yearbook of International Law 299), the claimant commenced civil proceedings in respect of injuries suffered because of the actions of German armed forces during World War II. The Polish Supreme Court dismissed the claim on the basis that Germany enjoyed State immunity. The court explained:

As to the argument that State immunity did not apply where there had been an alleged violation of jus cogens norms, the court said:

On the compatibility of the granting of State immunity with Article 6 § 1, the court said:

In Bucheron v. Germany, the applicant lodged a civil claim in the employment tribunal for alleged forced labour during the Second World War. His claim was dismissed on the basis that Germany enjoyed immunity. In 2003, the Court of Cassation upheld the dismissal of the claim (No. 02-45961, 16 December 2003). The same result was reached by the Court of Cassation in Grosz v. Germany (No. 04-475040, 3 January 2006) in a judgment later upheld by this Court in Grosz v. France (dec.), No. 14717/06, 16 June 2009.

In A.A. v. Germany (No. IP-13/99, 8 March 2001), the Slovenian Constitutional Court dismissed a civil claim lodged in respect of actions of Germany during the Second World War. The applicant had argued that there was, under customary international law, a jus cogens exception to the rules on State immunity. The court accepted that there was evidence of a trend in the future development of international law towards the limitation of State immunity before foreign courts in cases of alleged human rights violations. However, the evidence was not demonstrative of general State practice recognised as a law and thus creating such a rule of international customary law.

As regards the specific complaint under Article 6 § 1 of the Convention, the court referred to this Court's decision in Waite and Kennedy v. Germany [GC], no. 26083/94, ECHR 1999-I. It concluded that the restriction on the claimant's right of access to court pursued a legitimate aim and was proportionate, referring to the possibility for the applicant to commence a civil claim in Germany.

In the criminal case of Ould Dah the defendant, a Mauritanian State official, was prosecuted for and ultimately convicted by a French Assize Court of acts of torture committed in Mauritania. An appeal on points of law was subsequently rejected (No. 02-85379, 23 October 2002). On 1 July 2005 the Assize Court awarded damages to the various civil parties to the case. A similar result was reached in the subsequent criminal case of Khaled Ben Saïd.

In the Bouterse case, Mr Bouterse claimed immunity from criminal prosecution on the ground that the alleged acts of torture were committed while he was head of the State in Suriname. On 20 November 2000 the Amsterdam Court of Appeal refused to grant immunity on the basis that the commission of very serious offences, as was the case here, could not be considered to be one of the official duties of a head of State.

In a judgment of 25 July 2012 in A. v. Attorney General and Others, the Swiss Federal Criminal Court refused to uphold a claim of immunity in a criminal case against an Algerian national for war crimes, including acts of torture, committed in Algeria. The defendant had formerly served as defence minister and had been part of the junta that ruled Algeria at the relevant time. The case therefore concerned the residual ratione materiae immunity of an individual who had benefited from ratione personae immunity while in office. The court explained that the aim of ratione materiae immunity was both to protect officials from the consequences of acts attributable to the State for which they acted and, by doing so, to ensure respect for State sovereignty.

The court referred to the House of Lords’ judgment in Pinochet (No. 3) and to the evolution in favour of an increasing number of exceptions to ratione materiae immunity highlighted in legal doctrine. It acknowledged the debate regarding whether illegal acts could be considered official acts for the purposes of that immunity. It concluded that the legal doctrine and case-law no longer unanimously confirmed that residual ratione materiae immunity covered all acts committed while in office where allegations of serious violations of human rights had been made. It would therefore be paradoxical to affirm the intention to prevent grave violations of human rights while at the same time accepting a wide interpretation of rules on State immunity ratione materiae to the benefit of State officials, thus hindering any investigation into such allegations.

The Law of 16 June 1993 on the Punishment of Serious Violations of International Humanitarian Law defines certain acts, including torture and genocide, as international crimes punishable in accordance with the Law's provisions. Article 5 of the Law was amended in 1999 to provide expressly that: