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Craig Forcese, Faculty of Law, University of Ottawa

Valerie Oosterveld, Faculty of Law, University of Western Ontario

Joanna Harrington, Faculty of Law, University of Alberta

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Friday
Feb072014

State immunity, torture and civil actions: the ECHR decision in Jones

Update: Chapter 8, Section 3(b): Immunities from Civil Jurisdiction

 

Jones and Others v United Kingdom before the European Court of Human Rights

By Joanna Harrington

The quest to establish a jus cogens exception to state immunity laws so as to permit civil actions in third states for acts such as torture has met another obstacle, with the European Court of Human Rights in Jones and Others v United Kingdom relying on the International Court of Justice’s 2012 decision in Jurisdictional Immunities of the State (Germany v Italy) to hold that no such exception exists to the general rule granting a state immunity from the domestic courts of another state. However, while finding no reason to depart from what it described as the “lengthy and comprehensive” judgment of the House of Lords in Jones v. Ministry of Interior for the Kingdom of Saudi Arabia and others, [2006] UKHL 26, [2007] 1 AC 270, (mentioned in Chapter 8, section 3(b) of the second edition), the European Court has suggested that in light of the current developments in this area of public international law, this is a matter that needs to be kept under review by states.

The Jones case concerns the grant of immunity from civil proceedings to the Kingdom of Saudi Arabia, and to individual defendants, following an attempt to sue in the British courts for alleged acts of torture committed in the Kingdom. After losing his case in the House of Lords, Ronald Jones lodged an application with the European Court of Human Rights, alleging a violation of his right of access to a court, with his application being joined with a similar application concerning immunity from civil proceedings involving, among others, the now deceased Canadian (and British) businessman William Sampson. The interveners in the case were the Redress Trust, Amnesty International, the International Centre for the Legal Protection of Human Rights (“INTERIGHTS”), and the British organization JUSTICE.

On 14 January 2014, the European Court of Human Rights delivered its judgment in the case of Jones and Others v United Kingdom, Nos 34356/06 & 40528/06, holding that the grant of immunity from civil proceedings that prevented the three British citizens and one dual British-Canadian national from suing Saudi Arabia in a British court did not amount to a disproportionate infringement of the right of access to court protected by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221, ETS No 5, in force 3 September 1953 (also known as the “European Convention on Human Rights” and discussed in Chapter 9). Article 6 is the fair trial provision in the European human rights treaty, with European jurisprudence having long established that the entitlement to “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” includes a right to bring a legal dispute to a court (see Golder v United Kingdom, [1975] 1 EHRR 524).

As it had done in its 2001 Grand Chamber decision in Al-Adsani v United Kingdom, No. 35763/97, ECHR 2001 XI, involving similar facts, and a finding of no violation by a margin of just one vote, the European Court of Human Rights has again confirmed that the right of access to a court is not absolute and may be subject to limitations that pursue a legitimate aim and which ensure that there is reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Applying this test to the application of state immunity laws, the European Court has again made clear its view that the grant of sovereign immunity to a State in civil proceedings does pursue the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty. In addition, the Court has held that measures taken by a State which reflect generally recognized rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the Convention right of access to a court. As a result, the grant of immunity from civil proceedings for a foreign state is considered by the Court to be a justified restriction on an individual’s right of access to a court. The decision also suggests support for the position that one cannot circumvent the immunity granted to a foreign state by suing the foreign state’s officials, including lower level state officials.

The result is clearly a disappointment for the applicants, their counsel, and the interveners, who had hoped that the European Court would be able to find a way to either depart from, or distinguish, the earlier nine-votes-to-eight decision in Al-Adsani in 2001, and recognize that a torture exception to the doctrine of State immunity had since evolved under international law. The Court, and more specifically its Fourth Section, however, declined to relinquish jurisdiction to the Grand Chamber, and instead relied upon the 2012 judgment of the International Court of Justice in Jurisdictional Immunities of the State (Germany v Italy), which it regarded as “authoritative as regards the content of customary international law,” to find that no jus cogens exception to state immunity has yet crystallized.

In light of the availability of an alternative mechanism for redress with respect to the claims against Germany, it is worth noting that the Committee Against Torture, established by states and serviced by the UN, has found that there are no effective mechanisms for investigating claims of torture in Saudi Arabia. However, the Committee Against Torture appears to have weakened its own ability to influence judicial bodies, with the European Court recognizing expressly in Jones that the interpretation advanced by the Committee Against Torture with respect to the remedy provision in the Torture Convention, which required states (notably Canada) to provide civil remedies in cases of torture no matter where that torture was inflicted, had been rejected by several courts, leading the European Court to conclude, at paragraph 208, that: “The question whether the Torture Convention has given rise to universal civil jurisdiction is therefore far from settled.”

In addition to its review of a number of international sources, the European Court’s decision in Jones also mentions a number of domestic judicial decisions, including several from Canada, leading to a conclusion that there is little national-level case law supporting an exception to state immunity for torture claims. The European Court did, however, also recognize that appeals to the highest courts in Canada and the United States were pending. With the appeal of the Quebec Court of Appeal’s decision in Islamic Republic of Iran v Hashemi, 2012 QCCA 1449, [2012] R.J.Q. 1567, scheduled for a hearing before the Supreme Court of Canada in March 2014, reference is likely to be made to the Jones case, as well as the decision in Jurisdictional Immunities of the State. It is not known as yet whether any of the parties in Jones and Others v United Kingdom will request that the case be referred to the Grand Chamber of the European Court of Human Rights for (in essence) a re-hearing.