PROCEDURE

The case originated in two applications (nos. 34356/06 and 40528/06) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). In the first, the applicant is Mr Ronald Grant Jones, a British national who was born in 1953. His application was lodged on 26 July 2006. In the second, the applicants are Mr Alexander Hutton Johnston Mitchell, Mr William James Sampson and Mr Leslie Walker. They are also British nationals who were born in 1955, 1959 and 1946 respectively. Mr Sampson also has Canadian nationality. Their application was lodged on 22 September 2006.

Mr Jones was represented by Mr G. Cukier, a lawyer practising in London with Kingsley Napley LLP. Mr Mitchell, Mr Sampson and Mr Walker, who had been granted legal aid, were represented by Ms T. Allen, a lawyer practising in London with Bindmans LLP. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, Foreign and Commonwealth Office.

The applicants alleged, in particular, that the grant of immunity in civil proceedings to the Kingdom of Saudi Arabia in the case of Mr Jones and to the individual defendants in both cases amounted to a disproportionate interference with their right of access to a court under Article 6 of the Convention.

On 15 September 2009 the applications were communicated to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).

The Redress Trust (REDRESS), Amnesty International, the International Centre for the Legal Protection of Human Rights (Interights) and JUSTICE (“the third-party interveners”) were given leave by the President of the Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). They submitted joint written comments.

The applicants requested an oral hearing but on 29 November 2011 the Chamber decided not to hold a hearing in the case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Allegations of torture and proceedings brought by Mr Jones

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 sixty-seven 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 (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.

B. Allegations of torture and proceedings brought by Mr Mitchell, Mr Sampson and Mr Walker

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’s claim, on the basis of his previous ruling in respect of Mr Jones. However, the Master acknowledged that he had enjoyed the benefit of fuller argument than on the applications relating to Mr Jones’s claim, and said: “[H]ad the matter come before me as a free-standing application, without my having decided the Jones case ..., I might have been tempted to give permission to serve out of the jurisdiction on the basis that it seems to me that, having heard the arguments, that there is a case to be answered by these defendants as to whether there is jurisdiction in these courts over them.”

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

C. The Court of Appeal judgment

The two cases were joined and on 28 October 2004 the Court of Appeal published its judgment. It unanimously dismissed Mr Jones’s 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 and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the 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, Mance LJ 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: “71. ... It seems doubtful that the phrase ‘acting in an official capacity’ qualifies the reference to ‘a public official’. The types of purpose for which any pain or suffering must be inflicted ... would appear to represent a sufficient limitation in the case of a public official. Be that as it may, the requirement that the pain or suffering be inflicted by a public official does no more in my view than identify the author and the public context in which the author must be acting. It does not lend to the acts of torture themselves any official or governmental character or nature, or mean that it can in any way be regarded as an official function to inflict, or that an official can be regarded as representing the state in inflicting, such pain or suffering. Still less does it suggest that the official inflicting such pain or suffering can be afforded the cloak of state immunity ... The whole tenor of the Torture Convention is to underline the individual responsibility of state officials for acts of torture ...”

Mance LJ did not consider it significant that Lieutenant Colonel Abdul Aziz had been described in Mr Jones’s 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.

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 ground that England was an inappropriate forum for the litigation.

In considering the impact of Article 6, Mance LJ found important distinctions between a State’s claim to immunity ratione personae, in issue in Al‑Adsani (cited above), and a State’s claim to immunity ratione materiae in respect of its officials, in issue in the present cases. Firstly, 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, its Head of State or diplomats. He was of the view that the legislation and case-law of the United States of America (see paragraphs 112-25 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. However, 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.

Mance LJ 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 had committed the torture. He therefore allowed the applicants’ appeals in respect of the individual defendants and remitted them for further argument, concluding: “96. ... [I]t seems to me that any absolute view of immunity must at the very least yield in the face of assertions of systematic torture to a more nuanced or proportionate approach. As it is, having regard to the [European Convention on Human Rights], it is sufficient to decide this appeal that, whether issues of state immunity are or are not treated as theoretically separate from issues of jurisdiction in English law, the permissibility, appropriateness and proportionality of exercising jurisdiction ought to be determined at one and the same time. Such a conclusion reflects the importance attaching in today’s world and in current international thinking and jurisprudence to the recognition and effective enforcement of individual human rights. It fits harmoniously with the position already achieved in relation to criminal proceedings. It caters for our obligation under article 6 of the [Convention] not to deny access to our courts, in circumstances where it would otherwise be appropriate to exercise jurisdiction applying domestic jurisdictional principles, unless to do so would be in pursuit of a legitimate aim and proportionate. ...”

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: “134. Had the Grand Chamber been considering a claim for state immunity in relation to claims brought against individuals, I do not believe that there would have been a majority in favour of the view that this represented a legitimate limitation on the right to access to a court under Article 6(1). Had the Court shared the conclusions that we have reached on this appeal, it would have held that there was no recognised rule of public international law that conferred such immunity. Had it concluded that there was such a rule, I consider that it would have been likely to have held that it would not be proportionate to apply the rule so as to preclude civil remedies sought against individuals.”

D. The House of Lords judgment

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. However, 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 (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (see paragraphs 107-09 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 the 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. Firstly, they had to show 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. Secondly, they had to show that the grant of immunity denied them access to a court; Lord Bingham was satisfied that it plainly would. Thirdly, 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 Furundžija, 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”. Firstly, 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. Secondly, Article 14 of the Convention against Torture did not provide for universal civil jurisdiction. Thirdly, the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (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 ILC, it was not agreed (see paragraph 79 below). Lord Bingham noted in this respect that although some commentators had criticised the United Nations 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 paragraphs 42-43 below). He explained: “30. ... [T]here was no principled reason for this departure. A state can only act through servants and agents; their official acts are the acts of the state; and the state’s immunity in respect of them is fundamental to the principle of state immunity. This error had the effect that while the Kingdom was held to be immune, and the Ministry of Interior, as a department of the government, was held to be immune, the Minister of Interior (the fourth defendant in the second action) was not, a very striking anomaly.”

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: “31. ... A state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings. The prosecution of a servant or agent for an act of torture within article 1 of the Torture Convention is founded on an express exception from the general rule of immunity. It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party.”

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 in deciding whether it had used torture or not. He quoted with approval the observation of Hazel Fox QC (The Law of State Immunity (Oxford University Press, 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 Hoffmann 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: “78. ... To hold that for the purposes of state immunity [the official] was not acting in an official capacity would produce an asymmetry between the rules of liability and immunity.

Furthermore, in the case of torture, there would be an even more striking asymmetry between the Torture Convention and the rules of immunity if it were to be held that the same act was official for the purposes of the definition of torture but not for the purposes of immunity ...”

Lord Hoffmann found Lord Justice Mance’s conclusion that the Convention against Torture’s definition of torture did not lend acts of torture any official character to be unsatisfactory, explaining: “83. ... The acts of torture are either official acts or they are not. The Torture Convention does not ‘lend’ them an official character; they must be official to come within the Convention in the first place. And if they are official enough to come within the Convention, I cannot see why they are not official enough to attract immunity.”

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”.