ECHR reaffirms State immunity from civil proceedings for acts of torture in Jones v United Kingdom

In the recent case of Jones and others v United Kingdom, the European Court of Human Rights (the Court) found that the United Kingdom had not breached Article 6 of the European Convention on Human Rights (the right of access to a court) by granting immunity from jurisdiction to Saudi Arabia and its officials in respect of civil claims brought against them for alleged acts of torture. The Court held that the generally recognised rules of public international law did not contain an exception to State immunity in respect of civil claims concerning alleged acts of torture. It also found that such immunity of a State also protects individual employees and officers in respect of acts undertaken on behalf of the State.

Facts

The applicants in Jones v United Kingdom were a number of individuals who alleged that they were unlawfully detained and tortured in Saudi Arabia by Saudi Arabian police and prison officials. They launched proceedings in England, claiming damages against the Saudi Arabian State and the individual State officials who had carried out or sanctioned the alleged torture. Saudi Arabia applied to have the claims struck out on the basis that it, and its servants or agents, were entitled to immunity and the English courts had no jurisdiction. The applicants argued that international law recognised an exception to the principal of immunity of the State and its officials in cases of civil claims for acts of torture; i.e. breaches of a peremptory norm of international law which prohibits torture would not attract the protection of State immunity.

In the 2006 decision of Jones v Saudi Arabia, the House of Lords had found in favour of Saudi Arabia and the individual State officials. It held that section 1(1) of the State Immunity Act 1978, in conformity with international law, provided that a State was immune from the jurisdiction of the English courts (unless the proceedings fell within one of the specified exceptions, for example relating to commercial activities) and that such immunity extended to its officials, servants or agents. Although international law prohibited torture and established universal criminal jurisdiction over alleged torturers, no exception to immunity existed in respect of civil claims for alleged torture committed in a foreign State. The House of Lords also found that there was no breach of Article 6(1) of the European Convention on Human Rights (ECHR) regarding the applicants' right of access to a court. The applicants then brought proceedings before the European Court of Human Rights alleging breach of their rights of access to court under Article 6(1) of the ECHR.

Decision of the Court

In the 2001 decision of Al-Adsani v United Kingdom, the Grand Chamber of the Court had previously found by a narrow majority that there was no breach of Article 6(1) of the ECHR where the English Court of Appeal had struck out claims against Kuwait for civil damages for torture on the grounds of State immunity. In that case, a majority of the Grand Chamber found that there was no general acceptance in international law of the principle that States were not entitled to immunity in respect of civil claims for damages for torture committed in a foreign State. It found that the Court of Appeal's grant of immunity pursued the legitimate aim of complying with international law, to promote comity and good relations between States through the respect of another State's sovereignty. The applicants in Jones argued that the Court should depart from the approach of the Grand Chamber in Al-Adsani and reconsider whether the granting of immunity to the State in such circumstances was a disproportionate restriction on the right contained in Article 6(1) of the ECHR.

In light of its previous decision in Al-Adsani, the Court held that the sole question which it had to answer in Jones was whether, at the time of the House of Lords' decision in 2006, there had been an evolution in accepted international standards regarding the torture exception to State immunity since the Al-Adsani decision, such that the decision to grant immunity to Saudi Arabia did not reflect generally recognised rules of public international law.

Taking advantage of the evaluation of customary international law on this issue by the International Court of Justice in the 2012 case Jurisdictional Immunities of the State (Germany v Italy), the Court relied on the ICJ's finding that a peremptory norm ("jus cogens") exception to State immunity had not yet been recognised as a general principal of international law (a Herbert Smith Freehills blog post on the Germany v Italy case may be found here). The Court found that the House of Lords' finding in 2006 did not amount to an unjustified restriction on the applicants' right of access to court; there was no violation of Article 6(1).

Application of State immunity to claims against State officials

Some of the applicants in Jones had made claims directly against the State officials implicated in the torture allegations. The Court had to decide whether the decision of the House of Lords to grant State immunity ratione materiae to these individuals was compatible with Article 6(1) of the Convention. This issue had not been considered by the Grand Chamber of the Court in Al-Adsani, which only concerned claims made against the Saudi Arabian State for the actions of its officials.

The Court examined whether there was a general rule under public international law on State immunity which required domestic courts to uphold Saudi Arabia's claim of State immunity in respect of its officials and whether there was evidence of any exception concerning cases of alleged torture. It found that there was authority at national and international level that acts performed by State officials in the course of their duties are to be attributed, for the purposes of State immunity, to the State on whose behalf they act. State immunity therefore offered protection to individual employees and officers of a State in respect of acts undertaken on behalf of the State. It noted that, if it were otherwise, State immunity could always be circumvented by suing named officials.

Following a review of national and international authorities, the Court held that, while there was some emerging support in favour of an exception to immunity in public international law in cases concerning civil claims for torture against foreign State officials, the weight of authority recognised that the State's right to immunity could not be circumvented by suing the individual servants or agents instead.

The Court found that the House of Lords had fully engaged with all of the relevant arguments concerning the existence of a possible exception to immunity of foreign State officials in civil claims for alleged torture. The findings of the House of Lords were not manifestly erroneous or arbitrary and did not amount to an unjustified restriction on the applicants' rights of access to a court under Article 6(1) of the ECHR.

Finally, the Court noted that, in light of the developments underway in favour of supporting an exception to immunity in the case of State officials, ECHR Contracting States should keep this area of law under review. 

Comment

This decision is most interesting for its confirmation by the Court that the application of State immunity under the State Immunity Act 1978 does not infringe Article 6 of the ECHR. A finding to the contrary would have created considerable uncertainty in this area of law.

However, the decision is also notable because of its treatment of the immunity of State officials in civil proceedings. In considering the grant of immunity to State officials, the Court seemed to equate all acts of State officials as acts of the State, which attracted immunity and to which no jus cogens exception applied. This is in marked contrast to the treatment of such State officials under criminal law for acts of alleged torture. Cases such as R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet (No. 3) [1999] 2 WLR 827 show that former State officials will not be protected by State immunity from criminal proceedings in respect of acts of torture (the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 established universal criminal jurisdiction in relation to torture for Contracting States, but is generally interpreted as obliging only Contracting States in which the torture occurred to provide a civil remedy to victims).

As noted in the dissenting opinion of Judge Kalaydjieva in Jones v United Kingdom, the reasoning of the Court appears to endorse parallel systems of State immunity insofar as it applies to State officials: no immunity in relation to criminal proceedings for acts of torture (which are analysed as personal acts of the perpetrator), but immunity in relation to civil proceedings against them for the same acts (which are analysed as acts of the State). It remains to be seen how stable this arrangement may be, given the growing movement in support of an exception to civil immunity in the case of State officials (as identified by the Court) and the power of criminal courts in many countries to award compensatory damages to victims of criminal conduct. 

For further information, please contact Nusrat Zar, Partner, Andrew Cannon, Senior Associate, Harry Ormsby, Associate, or your usual Herbert Smith Freehills contact.