Al-Adsani v. the United Kingdom [GC]

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 36

November 2001

Al-Adsani v. the United Kingdom [GC] - 35763/97

Judgment 21.11.2001 [GC]

Article 6

Civil proceedings

Article 6-1

Access to court

Striking out of proceedings on ground of State immunity: no violation

Article 3

Positive obligations

Granting of State immunity in proceedings against a foreign government in respect of alleged torture: no violation

Facts: The applicant, a dual British/Kuwaiti national, served as a pilot in the Kuwaiti Air Force during the Gulf War and remained in Kuwait after the Iraqi invasion. He came into possession of sexual video tapes involving a sheikh related to the Emir of Kuwait. According to the applicant, the sheikh, who held him responsible for the tapes entering general circulation, gained entry to his house along with two others, beat him and took him at gunpoint to the State Security Prison, where he was detained for several days and repeatedly beaten by guards. He was later taken at gunpoint to a palace where he was repeatedly held under water in a swimming pool before being taken to a small room where the sheikh set fire to mattresses soaked in petrol, as a result of which the applicant sustained serious burns. After returning to the United Kingdom, the applicant instituted civil proceedings against the sheikh and the Government of Kuwait. He obtained a default judgment against the sheikh and was subsequently granted leave to serve proceedings on two named individuals. However, he was refused leave to serve the writ on the Kuwaiti Government. On appeal, the Court of Appeal concluded that leave should be granted and the writ was served, but on the application of the Kuwaiti Government the High Court ordered that the proceedings be struck out on the ground that the Kuwaiti Government was entitled to state immunity. The applicant's appeal was dismissed by the Court of Appeal and leave to appeal to the House of Lords was refused.

Law: Article 3 – Although Articles 1 and 3 taken together place a number of positive obligations on States, designed to prevent and provide redress for torture and other ill-treatment, the obligation applies only in relation to acts allegedly committed within the State's jurisdiction. Article 3 has some, limited, extraterritorial application, in so far as the State's responsibility may be engaged if it expels an individual to a country where there are substantial grounds for believing that there is a real risk of torture or ill-treatment. However, any liability would be incurred by reason of the expelling State having taken action which had as a direct consequence the exposure of the individual to such treatment. In the present case, as the applicant did not contend that the alleged torture took place within the jurisdiction of the United Kingdom or that the United Kingdom authorities had any causal connection with its occurrence, it could not be said that the State was under a duty to provide a civil remedy in respect of torture allegedly carried out by the Kuwaiti authorities.

Conclusion: no violation (unanimously).

Article 6 § 1 – Whether a person has an actionable domestic claim may depend not only on the substantive content of the right as defined under national law but also on the existence of procedural bars. It would not be consistent with the rule of law or the basic principle underlying Article 6(1) if a State could, without control by the Convention organs, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities on large groups or categories. In the present case, the proceedings which the applicant intended to pursue concerned a recognised cause of action, namely damages for personal injury, and the grant of immunity did not qualify a substantive right but constituted a procedural bar on the courts' power to determine the right. There thus existed a serious and genuine dispute over civil rights and Article 6 was applicable.

The right of access to court may be subject to limitations, provided they do not impair the very essence of the right. Such limitations must pursue a legitimate aim and be proportionate. The grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States. As to proportionality, the Convention should as far as possible be interpreted in harmony with other rules of international law, including those relating to State immunity. Thus, measures taken by a State which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court. In that respect, the relevant United Kingdom statute complies with the 1972 Basle Convention. However, the applicant contended that the prohibition of torture had acquired the status of jus cogens, taking precedence over treaty law and other rules of international law. While his allegations had never been proved, the alleged ill-treatment could properly be categorised as torture within the meaning of Article 3 of the Convention. The right enshrined in that provision is absolute and several other international treaties also prohibit torture; in addition, a number of judicial statements have been made to the effect that the prohibition of torture has attained the status of a peremptory norm or jus cogens, which the Court accepted. However, the present case did not concern the criminal liability of an individual but the immunity of a State in civil proceedings and there was no firm basis in international instruments, judicial authorities or other materials for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State in respect of alleged torture. Consequently, the United Kingdom statute was not inconsistent with those limitations generally accepted by the community of nations as part of the doctrine of State immunity and the application of its provisions could not be said to have amounted to an unjustified restriction on the applicant's access to court.

Conclusion: no violation (nine votes to eight).

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