Tuesday, 14 January 2014

European Court of Human Rights ~ Jones, Mitchell and others v UK ~ “What a pity!”

Updated 16th January with links to other commentaries

The aim of the United Kingdom's State Immunity Act 1978 is to grant other States immunity from the jurisdiction of the courts of the United Kingdom except as provided in the Act itself.  A number of exceptions to that general rule appear in sections 2 to 11.

As long ago as 2001, the European Court of Human Rights Grand Chamber decided Al Adsani v United Kingdom - (Grand Chamber 21st November 2001).  Mr Al-Adsani sought to sue Kuwait in respect of injury to his physical and mental health caused by torture in Kuwait in May 1991 and threats against his life and well-being made after his return to the United Kingdom on 17 May 1991.  Mr Al-Adsani's claim was rejected in the Court of Appeal and a further appeal to the House of Lords was refused.  At Strasbourg, it was held that there was no violation of Articles 3 and 6.

On 14th January 2014, the European Court of Human Rights has reached a similar conclusion in Jones, Mitchell and other v United Kingdom  - (European Court of Human Rights Fourth Section).  See also the article in The Guardian 14th January

The Court, while noting the growing recognition of the overriding importance of the prohibition of torture, did not find it established that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State. The 1978 Act, which grants immunity to States in respect of personal injury claims unless the damage was caused within the United Kingdom, is not inconsistent with those limitations generally accepted by the community of nations as part of the doctrine of State immunity.  

The basic facts of the case were:

The applicants, Ronald Grant Jones, Alexander Hutton Johnston Mitchell, William James Sampson, and Leslie Walker, are British nationals who were born in 1953, 1955, 1959 and 1946 respectively. The case concerned the refusal of the UK courts to allow the applicants to sue the Kingdom of Saudi Arabia or its officials for compensation for acts of torture allegedly carried out in Saudi Arabia. The applicants all claim that they were arrested in Riyadh in 2000 or 2001, and subjected to beatings, sleep deprivation and anal rape as well as being given mind-altering drugs. In 2002 Mr Jones brought proceedings against Saudi Arabia’s Ministry of Interior and the man who he alleges tortured him, claiming damages for torture. His application was struck out in February 2003 on the grounds that Saudi Arabia and its officials were entitled to State immunity. A claim by Mr Mitchell, Mr Sampson and Mr Walker against the four individuals that they considered to be responsible for their torture was struck out for the same reason in February 2004. The applicants appealed the decisions, and their cases were joined. In October 2004 the UK Court of Appeal unanimously found that, though Mr Jones could not sue the Kingdom of Saudi Arabia itself, the applicants could pursue their cases against the individual named defendants.  However, this decision was overturned by the House of Lords in June 2006, which held that the applicants could not pursue any of their claims on the ground that all of the defendants were entitled to State immunity.

Two principles of international law are in conflict here.  First, the principle that one State will not, with certain exceptions, exert its judicial authority over another State.  Secondly, the international law condemnation of torture.  In Jones, Mitchell and others, the European Court's 4th section held:

" ... the Court is satisfied that the grant of immunity to the State officials in the present case reflected generally recognised rules of public international law. The application of the provisions of the 1978 Act to grant immunity to the State officials in the applicants’ civil cases did not therefore amount to an unjustified restriction on the applicant’s access to a court. There has accordingly been no violation of Article 6 § 1 of the Convention in this case. However, in light of the developments currently underway in this area of public international law, this is a matter which needs to be kept under review by Contracting States."

This was a 6 to 1 majority decision.  Judge Bianku added a short concurring judgment.  Judge Kalaydjieva added a dissenting judgment.  These are reproduced below.  It will be particularly interesting to see whether this case is referred to the Grand Chamber under Article 43 of the Convention:

ARTICLE 43 - Referral to the Grand Chamber
1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber. 

2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.
3.If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.


It is with great hesitation that I voted in favour of the majority’s conclusions in the present judgment. Although the developments in the area under consideration are presented in a very balanced way, I think that almost thirteen years after delivery, with a very narrow majority, of the judgment in Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001XI, during which the subject matter has been the subject of very significant developments, the case should have been relinquished to the Grand Chamber in order to give it the opportunity to consider whether AlAdsani still remains good law.


The applicants in the present two cases sought to begin civil proceedings in the United Kingdom against the State of Saudi Arabia and against named State officials of that country for damage caused by acts of torture committed by those officials. The House of Lords unanimously held that their claims could not be allowed to proceed because Saudi Arabia benefited from State immunity and that immunity also extended to the named officials.

The essence of the majority’s conclusion that granting immunity from suit to States as well as to State officials in respect of such a claim constitutes a legitimate and proportionate restriction on the right of access to court which cannot be regarded as incompatible with Article 6 § 1 of the Convention follows the conclusions of the narrow majority in the case of Al-Adsani and what the majority view as the current state of public international law.

To my regret, I find myself unable to agree.

While it may be correct to conclude that by February 2012 (see paragraph 198), and prior to General Comment No. 3 (2012) of the CAT Committee (see paragraph 67), no jus cogens exception to State immunity had yet crystallised and that in view of when the event in the present case occurred it is not necessary for the Court to examine subsequent developments such as the recent judgment of the International Court of Justice in Germany v. Italy (see paragraphs 88-94), that conclusion concerns only State immunity. On this point I not only share the doubts of some of the numerous dissenting judges in the case of Al-Adsani, but also find it difficult to accept that this Court had no difficulties in waiving the automatic application of State immunity and finding violations of the right of access to court concerning disputes over employment (see Cudak v. Lithuania [GC], no. 15869/02, ECHR 2010, and Sabeh El Leil v. France [GC], no. 34869/05, 29 June 2011), but not concerning redress for torture – as in the present case.

Like Lord Justice Mance (see paragraph 17) I find it difficult to “accept that general differences between criminal and civil law justif[y] a distinction in the application of immunity in the two contexts”, especially in view of developments in this field, not least following the findings of the House of Lords in the case of Pinochet (No. 3) that there would be “no immunity from criminal prosecution in respect of an individual officer who had committed torture abroad in an official context.” I also find it “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” and 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 Torture Convention and no immunity could be claimed, but the victim of the alleged torture would be unable to pursue any civil claim”.

The present cases raise for the first time the question whether State officials can benefit from State immunity in civil torture claims, which has not yet been examined by the Court.

I am not convinced that this question should or could reasonably and necessarily be examined “applying the general approach set out in AlAdsani” (see paragraph 199), in which this Court’s scrutiny was limited to State immunity and did not concern the compatibility of extending it to named State officials with the right of access to court. In that regard I disagree with the somewhat declaratory nature of the majority’s following findings: “the immunity which is applied in a case against State officials remains ‘State’ immunity: it is invoked by the State and can be waived by the State. Where, as in the present case, the grant of immunity ratione materiae to officials was intended to comply with international law on State immunity, then as in the case where immunity is granted to the State itself, the aim of the limitation on access to court is legitimate” (see paragraph 200).

I find the conclusions of the majority on this issue regrettable and contrary to essential principles of international law concerning the personal accountability of torturers that is reflected unequivocally in Article 3 taken together with Article 1 of the European Convention on Human Rights, in the UN Convention on Torture and in the very concept establishing the ICC. Contrary to the view of the majority, in my understanding these principles were intended and adopted specifically as special rules for ratione materiae exceptions from immunity in cases of alleged torture (see paragraph 201).

In that regard I find myself unable to agree with the findings of the majority that “since an act cannot be carried out by a State itself but only by individuals acting on the State’s behalf, where immunity can be invoked by the State then the starting point must be that immunity ratione materiae applies to the acts of [torture committed by] State officials” (see paragraph 202). This appears to suggest that torture is by definition an act exercised on behalf of the State. That is a far cry from all international standards, which not only analyse it as a personal act, but require the States to identify and punish the individual perpetrators of torture – contrary to the “pragmatic understanding” of the majority that “[i]f it were otherwise, State immunity could always be circumvented by suing named officials”. I fear that the views expressed by the majority on a question examined by this Court for the first time not only extend State immunity to named officials without proper distinction or justification, but give the impression of also being capable of extending impunity for acts of torture globally.

To use the words of one of the dissenting judges in Al-Adsani: “What a pity!”

Other links:

Judges of the Court

European Journal of International Law - Philippa Webb (Lecturer on Public International law, Kings College London) - The re-integration of State and Official Immunity? 

See the submissions from Interights and Redress

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