CEDH · CASELAW;DECISIONS;DECGRANDCHAMBER;ENG — 1 mars 2000

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Wildhaber, President ,   Mrs   E. Palm,   Mr   C.L. Rozakis,   Sir   Nicolas Bratza,   Mr   M. Pellonpää,   Mr   L. Ferrari Bravo,   Mr   Gaukur Jörundsson,   Mr   G. Ress,   Mr   L. Caflisch,   Mr   L. Loucaides,   Mr   I. Cabral Barreto,   Mr   K. Jungwiert,   Mr   B. Zupančič,   Mrs   M. Tsatsa-Nikolovska,   Mr   T. Panţîru,   Mr   E. Levits,   Mr   A. Kovler, Judges , and   Mr   P. Mahoney, Deputy Registrar ,     Having regard to the above application introduced with the European Commission of Human Rights on 3 April 1997 and registered on 24 April 1997,     Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,     Having regard to the decision of 19 October 1999 by which the Chamber of the Third Section, to which the case had originally been assigned, relinquished its jurisdiction in favour of the Grand Chamber (Article 30 of the Convention),     Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,     Having regard to the parties’ oral submissions at the hearing on 9 February 2000,     Having deliberated on 1 March 2000, decides as follows: THE FACTS     The applicant has dual British and Kuwaiti nationality. He was born in the United Kingdom in 1961. The applicant is represented by Mr   G.   Bindman, a solicitor practising in London. At the oral hearing of 9 February 2000 he was represented by Mr   J.   MacDonald   Q.C. and Mr   O. Davies Q.C., Counsel, and Mr C. Romain, Adviser.   The Government were represented by Ms.   S. McCrory, Acting Agent, Mr   D. Lloyd Jones Q.C. and Mr   D. Anderson Q.C., Counsel, and Mr O. Paulin and Ms. J. Foakes, Advisers.   The facts, as submitted by the parties, may be summarised as follows:   A.   The applicant’s allegations concerning the events underlying the dispute he sought to submit to the jurisdiction of the United Kingdom courts     The applicant makes the following allegations, concerning the events underlying the dispute he sought to submit to the jurisdiction of the United Kingdom courts, on which the Government say that they are not in a position to comment:   The applicant, who is a trained pilot, went to Kuwait from London in 1991 in order to assist in the defence of Kuwait after it was invaded by Iraqi forces. During the Gulf War the applicant was a member of the Kuwait Air Force and fought in the war. After Kuwait was invaded by Iraq, he remained behind as a member of the resistance movement. During that period he came into possession of some pornographic video tapes. These tapes featured and incriminated Sheik Jaber Al-Sabah Al-Saud Al-Sabah. By some means these tapes entered general circulation and the applicant was considered responsible for this public exposure. Sheik Jaber Al-Sabah Al-Saud Al-Sabah is related to the Emir of Kuwait and is said to have an influential position in Kuwait.   After the Iraqis were expelled from Kuwait, on or about 2 May 1991 Sheik Jaber Al ‑ Sabah Al-Saud Al-Sabah, Sheik Talal Fahad Al-Ahmed Al-Sabah and Saad Jasim Al ‑ Sadd gained entry to the applicant’s house, beat him and took him at gunpoint in a government jeep to the State Security Prison in Kuwait. The applicant was falsely imprisoned there for several days during which he was repeatedly beaten by security guards. On 5 May 1991 the applicant was released from prison, having been forced to sign a false confession.   On or about 7 May 1991 the applicant met Sheik Jaber Al-Sabah Al-Saud Al ‑ Sabah who, together with Sheik Talal Fahad Al-Ahmed Al-Sabah and Saad Jasim Al ‑ Sadd, took him at gunpoint in a government car to the palace of the brother of the Emir of Kuwait. There the three above-mentioned individuals held the applicant's head repeatedly underwater in a swimming pool in which there were dead bodies. The applicant was then dragged into a small room where Sheik Jaber Al-Sabah Al-Saud Al-Sabah set fire to mattresses soaked in petrol, as a result of which the applicant was seriously burnt. The applicant was taken to hospital in Kuwait.   He was eventually flown to England on 17 May 1991 where he spent six weeks in hospital being treated for burns covering 25% of his total body surface area leaving him with a cosmetic abnormality of a major degree. The applicant also suffered severe psychological damage and has been diagnosed, since his return to England, as suffering from a severe form of post-traumatic stress disorder. The applicant states that this has been aggravated by the fact that, once in England, he received threats warning him not to take action or give publicity to his plight.   B.   The proceedings instituted by the applicant in the United Kingdom     On 29 August 1992 the applicant instituted proceedings for compensation against Sheik Jaber Al-Sabah Al-Saud Al-Sabah in the United Kingdom in respect of the above. On 15   December 1992 he obtained a default judgment.   A second set of civil proceedings for compensation was instituted by the applicant against the Kuwait Government as well as Sheik Jaber Al-Sabah Al-Saud Al-Sabah, together with Sheik Talal Fahad Al-Ahmed Al-Sabah and Saad Jasim Al-Sadd (“the individual defendants”). The applicant claimed damages for injury to his physical and mental health caused by ill-treatment amounting to torture inflicted on him in Kuwait in May 1991 and by threats against his life and well-being made after he had returned to the United Kingdom on 17 May 1991.   On 8 July 1993 a deputy High Court judge ex parte gave the applicant leave to serve the proceedings on the individual defendants. This decision was confirmed in chambers on 2   August 1993. However, the applicant was not given leave to serve the proceedings on the Kuwait Government.   The applicant submitted a renewed application to the Court of Appeal, which was heard ex parte on 21 January 1994. In a judgment delivered on the same day, the court examined whether the applicant showed a good arguable case warranting the exercise of the court’s discretion under Order 11 of the Rules of the Supreme Court. In this context the court also examined whether the applicant showed a good arguable case that the Kuwait Government was not entitled to sovereign immunity.   As regards Order 11, the court considered that, on the basis of the applicant’s claims, there were three elements pointing towards Government responsibility for the events in Kuwait. The applicant was taken to a State prison, Government transport was used on 2 and 7   May 1991 and, at least on the first occasion, he was ill-treated by Government employees. The Court also noted that, according to the medical experts, due to the physical injuries suffered in Kuwait, the applicant suffered serious injuries to his mental health during his time in the United Kingdom. In the view of the court, it followed that the applicant had made out a good arguable case that his claim was founded on a tort and the damage was sustained within the jurisdiction. This was enough for Order 11 rule   1   (f). However, the applicant, in so far as he claimed that the threats after 17 May 1991 caused further damage to his mental health, also made out a claim in respect of acts committed within the jurisdiction.   As regards immunity, the court considered that the applicant had made out a good arguable case that no sovereign immunity should be accorded under section 1(1) of the State Immunity Act 1978 ("the 1978 Act") in respect of acts that were properly to be described as torture in contravention of public international law. In this connection the court referred, inter alia , to a decision of a United States Court of Appeals, Filartiga v. Pena-Irala 630 F.2d 876 (1980) [1] . Moreover, the court considered that the applicant had made out a good arguable case that some of the threats he had received in the United Kingdom had been made by the Government of Kuwait or with the Government’s backing. As a result, section 5 of the 1978 Act also came into play. In the light of all the above, the court decided to grant the applicant leave to serve the proceedings on the Kuwait Government.   The Government of Kuwait, upon being served with the proceedings, sought an order striking out the claim brought against them. They claimed that the State Immunity Act 1978 prevented a claim in tort from being made against them.   The application was examined inter partes by the High Court on 15 March 1995. In a judgment delivered on the same day the court considered that it could not examine the issue under Order 11 and that it was for the applicant to show on the balance of probabilities that the Government of Kuwait were not entitled to avail themselves of the immunity conferred by the 1978 Act. The court further considered that, at that stage, it could only rely on the facts as alleged by the applicant. The court noted that, for entirely proper reasons, there had been no attempt on the part of the Kuwait Government to challenge the facts and, as a result, it could not be assumed that the Government were prepared to accept the applicant’s version.   The court was prepared provisionally to accept that the Government of Kuwait were vicariously responsible for conduct that would qualify as torture under international law. However, according to the court, international law could only be used to cover lacunae in the interpretation of statutes. When the terms of a statute were clear, the statute had to prevail over international law. The clear language of the 1978 Act bestowed immunity upon sovereign States for acts committed outside the jurisdiction and, by making express provision for exceptions, it excluded as a matter of construction implied exceptions. As a result, there was no room for an implied exception for acts of torture in section 1(1) of the 1978 Act. Moreover, the court was not satisfied on the balance of probabilities that the Kuwait Government were responsible for the threats made to the applicant after 17 May 1991. As a result, the exception of section 5 of the 1978 Act could not apply. In the light of all the above, the court held that the applicant could not pursue his claim against the Government of Kuwait. The applicant appealed.   The Court of Appeal examined the applicant’s appeal on 12 March 1996. Stuart-Smith LJ noted that the applicant’s claim against the Kuwait Government was founded on what had taken place during his detention in the State Security Prison, since the applicant did not allege that the Kuwait Government were responsible for the acts of the other defendants on 7 May 1991. The judge also noted that the Court of Appeal had for the first time before it a number of decisions from United States courts pointing in a different direction than Filartiga v. Pena-Irala [2] ; if they had been available previously, the court might have reached a different conclusion on 21   January 1994. Moreover, the judge noted that if section 1(1) of the 1978 Act were to be given the construction advocated by the applicant, the United Kingdom courts would be put in the position of having to decide on serious claims of torture without the benefit of argument from both sides, as most foreign states would be unlikely to submit to their jurisdiction.   As for the rest, the judges of the Court of Appeal agreed with the reasoning of the High Court. Consequently they upheld its decision of 15 March 1995.   The House of Lords refused the applicant leave to appeal on 27 November 1996.   An attempt by the applicant to obtain compensation from the Kuwaiti authorities via the diplomatic channels proved unsuccessful.   C.   Relevant domestic law and practice   1.   The State Immunity Act 1978 provides, in so far as relevant, as follows:   “1.   (1)   A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.   ...   5.   A State is not immune as respects proceedings in respect of-       (a)   death or personal injury;   ...   caused by an act or omission in the United Kingdom.   ...”   2.   Order 11 rule 1 of the Rules of the Supreme Court provides, in so far as relevant, the following:   “… service of a writ out of the jurisdiction is permissible with the leave of the court if in the action begun by the writ   …   (f)   the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction   …”   3.   Diplock LJ observed the following in Buck v. Attorney-General [1965] 1 Ch 745, 770.   “So I think the essential question is whether, apart from such particular rules as I have discussed, viz. those established by (a) the Mocambique [1893] A.C. 60 and Hesperides [1979] A.C. 508 cases and by (b) Luther's case [191] 3 KB 532 and Princess Paley Olga v.   Weisz [1929] A KB 718, there exists in English law a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states. Though I would prefer to avoid argument on terminology, it seems desirable to consider this principle, if existing, not as a variety of 'acts of state' but one of judicial restraint or abstention...   In my opinion there is, and for long has been, such a general principle, starting in English law, adopted and generalised in the law of the United States of America, which is effective and compelling in English courts. This principle is not one of discretion, but is inherent in the very nature of the judicial process.”   4.   Section 134 of the Criminal Justice Act 1988, which entered into force on 29   September 1988, made torture, wherever committed worldwide, criminal under United Kingdom law and triable in the United Kingdom. Moreover, the United Kingdom ratified the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ("the UN Convention against Torture") with effect from 8 December 1988.     In its Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3) judgment of 24 March 1999 the House of Lords held that Senator Pinochet could be extradited to Spain only in respect of those charges which concerned conduct that would be a crime in the United Kingdom at the time when the alleged offence was committed. The majority of the Law Lords considered that extraterritorial torture did not become a crime in the United Kingdom until section 134 of the Criminal Justice Act 1988 came into effect.     Moreover, the majority of the Law Lords held that a former head of State had under Part II of the State Immunity Act 1978 immunity from the criminal jurisdiction of the United Kingdom for acts done in his official capacity. However, torture was an international crime and prohibited by jus cogens and after the coming into effect of the UN Convention against Torture there had been a universal jurisdiction in all the Convention States Parties to either extradite or punish a public official who committed torture. In the light of that universal jurisdiction the States Parties could not have intended that an immunity for ex-heads of State for official acts of torture would survive their ratification of the Convention.     Lord Goff considered that Senator Pinochet was entitled to the benefit of immunity ratione materiae as former head of State. Lord Hope considered that the States Parties to the UN Convention against Torture had intended to remove immunity only for systematic and widespread acts of official torture. Lord Millett and Lord Phillips considered that the systematic use of torture was an international crime for which there could be no immunity even before the UN Convention against Torture entered into effect.     Within the majority, Lord Browne-Wilkinson, Lord Hope and Lord Saville considered that Senator Pinochet could have no immunity for crimes of torture after 8   December 1988. Lord Hutton considered that the relevant date was 29 September 1988.     Lord Millett and Lord Phillips expressly made clear that the decision of the House of Lords had no effect on the immunity enjoyed by a State in civil proceedings against the State, such immunity being governed by Part I of the 1978 Act.   5.   On 3 July 1979 the United Kingdom ratified the 1972 European Convention on State Immunity, which entered into force in respect of that country on 4 October 1979.   6.   The UN Convention against Torture entered into force for Kuwait in 1996. Kuwait is not a party to the 1972 European Convention on State Immunity.     COMPLAINTS   1.   The applicant complains under Article 3 of the Convention that the United Kingdom courts, by granting immunity from suit to the Government of Kuwait, failed to secure enjoyment of his right not to be tortured.   2.   He also complains that the grant of immunity from suit to the Government of Kuwait amounts to a denial of his right of access to court contrary to Articles   6 § 1 and 13 of the Convention.     THE LAW   The applicant has submitted complaints under Articles 3, 6 § 1 and 13 of the Convention.     The Convention provisions invoked provide the following:     Article 3   “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”     Article 6 § 1   “In the determination of his civil rights and obligations …, everyone is entitled to a … hearing … by a … tribunal …”     Article 13   “Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”     Submissions by the parties   The applicant   As regards Articles 3 and 13 of the Convention, the applicant argues that the United Kingdom courts, by granting immunity from suit to the Government of Kuwait, failed to secure enjoyment of his right not to be tortured.   As regards Article 6 § 1 of the Convention, the applicant argues that this provision applies to the proceedings in question. Torture is a civil wrong in English law and the United Kingdom asserts jurisdiction over civil wrongs committed abroad if the plaintiff is resident in the United Kingdom and has a sufficient interest in the matter. The applicant has that status and the domestic courts accepted jurisdiction over his claims against the individual defendants. The applicant’s claim against the Kuwait Government was not defeated because of its nature but because of the identity of the defendant. By conferring immunity on foreign Governments the domestic courts removed a category of persons from the jurisdiction of the courts. This cannot escape the control of the Court. As regards the Government’s submissions concerning the non-justiciability of acts of State, the applicant argues that torture is not an act of State. The doctrine of act-of-State non-justiciability is based on a judicial policy of self-restraint, which, as opposed to a statute, cannot prevail over international law. In any event, the doctrine of act of State, which is unclear, does not apply to all action by a foreign State within its territory.   The applicant argues that restricting the right of access to court in his case does not serve a legitimate aim. The House of Lords in ex parte Pinochet (No. 3) accepted that the prohibition of torture had acquired the status of a jus cogens norm in international law and that torture had become an international crime before the UN Convention against Torture. It follows that the applicant’s torture in Kuwait was an offence prohibited under jus cogens . In the applicant’s view, in these circumstances there can be no immunity from criminal jurisdiction. The applicant argues that there is no rational basis for allowing sovereign immunity in a civil action when immunity would not be a defence in a criminal action arising from the same set of facts. Sovereign immunity is trumped by jus cogens across the board. Otherwise, there would be no forum where torture can be redressed other than the forum of the locus delicti .   The applicant stresses that his case had an obvious connection with the United Kingdom, as accepted by the Court of Appeal when it decided to allow the applicant to serve the proceedings on the Kuwait Government. The applicant is a British citizen and part of the damage he suffered was sustained in the United Kingdom. One of the individual defendants had been served in the United Kingdom and the Government of Kuwait was a necessary party in the proceedings. The applicant would have argued before the United Kingdom courts that the persons who carried out the burning on 7 May 1991 were agents and officers of the Government of Kuwait.   The applicant tried to obtain redress through the diplomatic channels but the United Kingdom Government refused to assist him. Finally, the applicant argues that he cannot obtain an effective remedy against the individual defendants as they have no ascertainable recoverable assets in the United Kingdom.   In conclusion the applicant submits that torture is outside the law and sovereign immunity cannot, therefore, be claimed for acts of official torture that no Government can lawfully undertake. Section 1 of the 1978 Act introduces disproportionate restrictions to the right of access to court because it gives States an immunity that cannot be justified by international law.   The Government   As regards the applicant’s complaint under Article 3 of the Convention, the Government stress that the alleged torture took place outside the jurisdiction of the United Kingdom, a country which the applicant left voluntarily to go to Kuwait. As a result, the complaint does not fall within Article 1 of the Convention. In the Government’s view, any positive obligations under Article 3 could extend only to the prevention of torture and not to arrangements for compensation. The applicant does not argue that the United Kingdom authorities failed to prevent the torture allegedly inflicted on him in Kuwait. In any event, the enactment of the State Immunity Act 1978 does not involve a violation of Article 3 of the Convention. The Government, therefore, argue that the complaint under Article 3 is inadmissible. They submit that there is no arguable claim under Article 13 either.   As regards the applicant’s complaint under Article 6 § 1 of the Convention, the Government point out that the claim he intended to bring against the Kuwait Government in the United Kingdom courts concerned false imprisonment in the Kuwait State Security Prison and repeated beatings by the guards while he was there. It did not concern the alleged events of 7   May 1991, as a result of which the applicant suffered physical injuries in Kuwait and additional injuries to his mental health while in the United Kingdom. It follows that the applicant could not rely on the second type of injuries to create a jurisdictional link between his case against the Kuwait Government and the United Kingdom. Moreover, the applicant had failed to satisfy the English courts that he had received threats in the United Kingdom by persons for whom Kuwait was vicariously responsible.   In the Government’s view, Article 6 § 1 does not apply because the applicant did not have an actionable domestic claim and, as a result, he was not relying on a “right” that existed under domestic law. Kuwait was immune ratione personae under public international law and the United Kingdom courts were not competent to rule on the dispute. The subject-matter of the dispute was non-justiciable. Moreover, there was no satisfactory basis on which the national courts could assume jurisdiction. The Government submit that the obligations that Article 6 creates for States can only extend to matters over which their courts have jurisdiction. In addition, because the doctrine of sovereign immunity is fixed and predictable in domestic law, there could be no argument as to whether it applied in the applicant’s case.   In the alternative, the Government argue that the restriction imposed on the applicant’s right of access to court pursued a legitimate aim and was proportionate. The Kuwait Government were not granted immunity in respect of personal injury caused by an act and omission in the United Kingdom. The 1978 Act, which the domestic courts applied in the applicant’s case, reflects the provisions of the 1972 European Convention on State Immunity, which in turn give expression to universally applicable principles of public international law. There is no rule that prohibits the grant of immunity to a State when its conduct is alleged to be in breach of a jus cogens norm of international law. Arguing that States cannot grant immunity in respect of official torture because the latter is prohibited by a jus cogens norm is a non sequitur . There is no evidence of a change in customary international law in this respect. Both Amerada Hess and Siderman de Blake (cited above) concerned claims for damages for official acts of torture. The US Foreign Sovereign Immunities Act only permits proceedings to be brought by or on behalf of US nationals against a State that has been designated by the US Government as a sponsor of terrorism. The ex parte Pinochet (No.   3) decision of the House of Lords (cited above) concerned the immunity ratione materiae of an individual from criminal jurisdiction after the 1984 UN Convention against Torture entered into force for all States concerned, while the present case concerns the immunity ratione personae of a State from civil proceedings. Lord Millett in the House of Lords accepted that acts that attracted sovereign immunity in civil proceedings against States could attract individual criminal liability. Moreover, the majority in the House of Lords expressly stated that their ruling did not affect the immunity ratione personae of a current head of State. A fortiori it cannot affect the immunity ratione personae of a State. The essence of the reasoning of the House of Lords in ex parte Pinochet (No.   3) was that immunity ratione materiae applied to all official acts on behalf of the State and the States Parties to the UN Convention against Torture could not have intended to leave in place an immunity from criminal prosecution exactly co-extensive with the jurisdiction they had established.   The Government also submit that the applicant ran into difficulties because he sought to obtain redress against a foreign State in the courts of the United Kingdom for events that did not occur there and had no real connection with that jurisdiction, as required under Order   11, Rule 1 of the Rules of the Supreme Court. Section 5 of the 1978 Act makes a distinction between injury caused by acts or omissions in the United Kingdom (in respect of which there is no immunity) and injury caused by acts or omissions abroad (in respect of which there is) in order to ensure that the courts of the United Kingdom have a sufficient connection with the substance of the tort claim. The introduction of such a jurisdictional link exists in the 1972 European Convention on State Immunity and the domestic laws of many countries, including the United States. Moreover, the House of Lords in ex parte Pinochet (No. 3) , instead of accepting compulsory universal jurisdiction, made justiciability dependent on the ratification of the UN Convention against Torture by all States concerned. The Convention in question entered into force for Kuwait only in 1996.   In any event, the Government argue that there existed the traditional means of redress for wrongs of this kind, namely diplomatic representations or an inter-State claim.   In conclusion the Government submit that Article 6 § 1 of the Convention cannot be interpreted so as to compel Contracting States to deny immunity to non-Contracting States, so as to compel Contracting States to accept jurisdiction over non-Contracting States and so as to impose irreconcilable obligations on States that have ratified the Convention and the 1972 European Convention on State Immunity.   The Court’s assessment   The Court notes that the Government, in arguing that the torture alleged did not fall within Article 1 of the Convention and that the proceedings in question did not concern a “right” recognised under domestic law, are pleading that the application is incompatible with the provisions of the Convention under Article 35 § 3. However, the Court is of the view that these arguments are closely linked with the substance of the applicant’s complaints under Articles 3, 6 § 1 and 13 of the Convention.   Having examined the parties' observations on the substance of these complaints, the Court considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article   35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.     For these reasons, the Court, unanimously,   DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.             Paul Mahoney   Luzius Wildhaber   Deputy Registrar   President [1] The Court of Appeals found that torture was prohibited by the law of nations and, as a result, the federal courts had jurisdiction under the Alien Tort Statute to try an action for damages against a foreign national on a visitor’s visa in the United States concerning events outside the jurisdiction. [2] In Argentine Republic v. Amerada Hess Shipping Corporation 488 U.S. 428 (1989) and Siderman de Blake v. Republic of Argentine 965 F.2d 699 (1992) the Supreme Court and a Federal Court of Appeals applied the Foreign Sovereign Immunities Act 1976 to dismiss claims for damages for alleged breaches of international law, including official acts of torture.