Al-Adsani v. the United Kingdom
On the 21st November, the European Court of Human Rights handed out its final judgment in the case of Al-Adsani v. the United Kingdom.
In the words of Judge Ferrari Bravo in his dissenting opinion, “the Court has unfortunately missed a very good opportunity to deliver a courageous judgment.”
Owen Davies, QC, Chair of the Trustees of REDRESS, noted that this decision represents an unfortunate step backward for torture survivors seeking reparation:
“While it does recognise that the prohibition of torture is a peremptory norm, this is of little consequence to Sulaiman Al-Adsani, now a torture survivor without a remedy.”
Mr. Sulaiman Al-Adsani is a dual British/Kuwaiti national was severely tortured in Kuwait in 1991. In addition to repeated beatings, his head was held underwater in a swimming pool containing corpses, then dragged into a small room where mattresses soaked in petrol were set on fire, as a result of which Mr. Al-Adsani suffered burns covering 25 percent of his body surface.
Article 14 of the Convention against Torture provides that “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.”
With no prospect of a domestic remedy in Kuwait, Mr. Al-Adsani instituted civil proceedings in England for compensation and joined the Government of Kuwait. On 15 December 1992 he obtained a default judgment against the individual responsible, but was not, however, granted leave to serve the writ on the Kuwaiti Government. This was on the basis that the State Immunity Act, 1978 shielded the Kuwaiti Government from civil suits, even suits which relate to torture.
Mr. Al-Adsani applied to the European Court of Human Rights, alleging that UK courts, by granting immunity from suit to the Government of Kuwait, failed to secure enjoyment of his right not to be tortured and denied him access to court contrary to Articles 3, 6(1) and 13 of the Convention. The Grand Chamber declared the application admissible on 1 March 2000.
On the alleged violation of Article 6(1), the Court unanimously recognised that Article 6(1) was applicable to the circumstances, and noted that immunity was not a substantive right but at most a procedural bar on the national courts’ power to determine the right.
By a narrow majority of 9 votes to 8, the Court held that the grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law, and maintained that unlike criminal cases, it is unable to discern any firm basis for concluding that a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.
Judge Loucaides, in his dissenting opinion concludes that:
“It would be a travesty of law to allow exceptions in respect of civil liability by permitting the concept of state immunity to be relied on successfully against a claim for compensation by any victim of torture. The rationale behind the principle of international law that those responsible for atrocious acts of torture must be accountable is not based solely on the objectives of criminal law. It is equally valid in relation to any legal liability whatsoever.”
Judges Rozakis and Caflisch joined by judges Wildhaber, Costa, Cabral Barreto and Vajic in their dissenting opinion, argued that the status of the prohibition of torture as a peremptory norm means that it overrides any other rule [including State Immunity] which does not have the same status:
“In the circumstances of this case, Kuwait cannot validly hide behind the rules on State immunity to avoid proceedings for a serious claim of torture made before a foreign jurisdiction; and the courts of that jurisdiction (the United Kingdom) cannot accept a plea of immunity, or invoke it ex officio, to refuse an applicant adjudication of a torture case.”
They note that the British courts never invoked any difference between criminal charges or civil claims, between criminal and civil proceedings, in so far as the legal force of the rules on State immunity or the applicability of the 1978 Act was concerned.
“They simply denied that the prohibition of torture was a jus cogens rule.”
Sulaiman Al-Adsani is now a torture survivor without a remedy.
Full Judgment Text
For additional information, please contact:
Owen Davies, QC, Chair of Trustees of REDRESS
Carla Ferstman, Legal Director, REDRESS