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«CASE OF AL-ADSANI v. THE UNITED KINGDOM (Application no. 35763/97) JUDGMENT STRASBOURG 21 November 2001 This judgment may be subject to editorial ...»

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CONSEIL COUNCIL

DE L’EUROPE OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

CASE OF AL-ADSANI v. THE UNITED KINGDOM

(Application no. 35763/97)

JUDGMENT

STRASBOURG

21 November 2001 This judgment may be subject to editorial revision.

AL-ADSANI v. THE UNITED KINGDOM JUDGMENT 1

In the case of Al-Adsani v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber

composed of the following judges:

Mr L. WILDHABER, President, Mrs E. PALM, Mr C.L. ROZAKIS, Mr J.-P. COSTA, Mr L. FERRARI BRAVO,

Mr GAUKUR JÖRUNDSSON,

Mr L. CAFLISCH, Mr L. LOUCAIDES, Mr I. CABRAL BARRETO, Mr K. JUNGWIERT, Sir Nicolas BRATZA, Mr B. ZUPANČIČ, Mrs N. VAJIĆ, Mr M. PELLONPÄÄ, Mrs M. TSATSA-NIKOLOVSKA, Mr E. LEVITS, Mr A. KOVLER, and also of Mr P.J. MAHONEY, Registrar, Having deliberated in private on 15 November 2000, 4 July 2001 and on 10 October 2001, Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 35763/97) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a dual British/Kuwaiti national, Mr Sulaiman Al-Adsani (“the applicant”), on 3 April 1997.

2. The applicant, who had been granted legal aid, was represented by Mr G. Bindman, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Foakes, Foreign and Commonwealth Office, London.

2 AL-ADSANI v. THE UNITED KINGDOM JUDGMENT

3. The applicant alleged 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 and denied him access to court contrary to Articles 3, 6 § 1 and 13 of the Convention.

4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 19 October 1999 the Chamber relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).

6. By a decision of 1 March 2000, following a hearing on admissibility and merits (Rule 54 § 4) which had been held on 9 February 2000, the Grand Chamber declared the application admissible.

7. The applicant and the Government each filed written observations on the merits. On 13 September 2000 the Grand Chamber decided, exceptionally, to grant the Government’s request for a further hearing on the merits.

8. A hearing took place in public in the Human Rights Building, Strasbourg, on 15 November 2000 (Rule 59 § 2), jointly with the case of Fogarty v. the United Kingdom (no. 37112/97).

There appeared before the Court at the second hearing:

–  –  –

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The alleged ill-treatment

9. The applicant made the following allegations concerning the events underlying the dispute he submitted to the courts of the United Kingdom.

The Government stated that they were not in a position to comment on the accuracy of these claims.

10. The applicant, who is a trained pilot, went to Kuwait in 1991 to assist in its defence against Iraq. During the Gulf War he served as a member of the Kuwaiti Air Force and, after the Iraqi invasion, he remained behind as a member of the resistance movement. During that period he came into possession of sexual video tapes involving Sheikh Jaber Al-Sabah Al-Saud Al-Sabah (“the Sheikh”), who is related to the Emir of Kuwait and is said to have an influential position in Kuwait. By some means these tapes entered general circulation, for which the applicant was held responsible by the Sheikh.

11. After the Iraqi armed forces were expelled from Kuwait, on or about 2 May 1991, the Sheikh and two others gained entry to the applicant’s house, beat him and took him at gunpoint in a government jeep to the Kuwaiti State Security Prison. The applicant was falsely imprisoned there for several days during which he was repeatedly beaten by security guards.

He was released on 5 May 1991, having been forced to sign a false confession.

12. On or about 7 May 1991 the Sheikh took the applicant at gunpoint in a government car to the palace of the Emir of Kuwait’s brother. At first the applicant’s head was repeatedly held underwater in a swimming pool containing corpses, and he was then dragged into a small room where the Sheikh set fire to mattresses soaked in petrol, as a result of which the applicant was seriously burnt.





4 AL-ADSANI v. THE UNITED KINGDOM JUDGMENT

13. Initially the applicant was treated in a Kuwaiti hospital, and on 17 May 1991 he returned to England where he spent six weeks in hospital being treated for burns covering 25 percent of his total body surface area.

He also suffered psychological damage and has been diagnosed as suffering from a severe form of post-traumatic stress disorder, 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 civil proceedings

14. On 29 August 1992 the applicant instituted civil proceedings in England for compensation against the Sheikh and the Government of 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. On 15 December 1992 he obtained a default judgment against the Sheikh.

15. The proceedings were re-issued after an amendment to include two named individuals as defendants. 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. He was not, however, granted leave to serve the writ on the Kuwaiti Government.

16. The applicant submitted a renewed application to the Court of Appeal, which was heard ex parte on 21 January 1994. Judgment was delivered the same day.

The court held, on the basis of the applicant’s allegations, that there were three elements pointing towards governmental responsibility for the events in Kuwait: first, the applicant had been taken to a State prison; secondly, Government transport had been used on 2 and 7 May 1991; and, thirdly, in the prison he had been mistreated by public officials. It found that the applicant had established a good arguable case, based on principles of international law, that Kuwait should not be afforded immunity under section 1(1) of the State Immunity Act 1978 (“the 1978 Act”: see paragraph 21 below) in respect of acts of torture. In addition, there was medical evidence indicating that the applicant had suffered damage (posttraumatic stress) while in the United Kingdom. It followed that the conditions in Order 11 rule 1(f) of the Rules of the Supreme Court had been satisfied (see paragraph 20 below) and that leave should be granted to serve the writ on the Kuwaiti Government.

AL-ADSANI v. THE UNITED KINGDOM JUDGMENT 5

17. The latter, after receiving the writ, sought an order striking out the proceedings. The application was examined inter partes by the High Court on 15 March 1995. In a judgment delivered the same day the court held that it was for the applicant to show on the balance of probabilities that the Government of Kuwait were not entitled to immunity under the 1978 Act. It was prepared provisionally to accept that the Government were vicariously responsible for conduct that would qualify as torture under international law. However, international law could be used only to assist in interpreting lacunae or ambiguities in a statute, and 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 Kuwaiti Government were responsible for the threats made to the applicant after 17 May 1991. As a result, the exception provided for by section 5 of the 1978 Act could not apply. It followed that the action against the Government should be struck out.

18. The applicant appealed and the Court of Appeal examined the case on 12 March 1996. The court held that the applicant had not established on the balance of probabilities that the Kuwaiti Government were responsible for the threats made in the United Kingdom. The important question was, therefore, whether State immunity applied in respect of the alleged events in

Kuwait. Lord Justice Stuart-Smith finding against the applicant, observed:

“Jurisdiction of the English court in respect of foreign States is governed by the

State Immunity Act 1978. Section 1(1) provides:

‘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....’... The only relevant exception is section 5, which provides:

‘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.’ It is plain that the events in Kuwait do not fall within the exception in section 5, and the express words of section 1 provide immunity to the First Defendant. Despite this, in what [counsel] for the Plaintiff acknowledges is a bold submission, he contends that that section must be read subject to the implication that the State is only

granted immunity if it is acting within the Law of Nations. So that the section reads:

‘A State acting within the Law of Nations is immune from jurisdiction except as provided...’

6 AL-ADSANI v. THE UNITED KINGDOM JUDGMENT

... The argument is... that international law against torture is so fundamental that it is a jus cogens, or compelling law, which overrides all other principles of international law, including the well-established principles of sovereign immunity. No authority is cited for this proposition.... At common law, a sovereign State could not be sued at all against its will in the courts of this country. The 1978 Act, by the exceptions therein set out, marks substantial inroads into this principle. It is inconceivable, it seems to me, that the draughtsman, who must have been well aware of the various international agreements about torture, intended section 1 to be subject to an overriding qualification.

Moreover, authority in the United States at the highest level is completely contrary to [counsel for the applicant’s] submission. [Lord Justice Stuart-Smith referred to the judgments of the United States courts, Argentine Republic v. Amerada Hess Shipping Corporation and Siderman de Blake v. Republic of Argentina, cited in paragraph 24 below, in both of which the court rejected the argument that there was an implied exception to the rule of State immunity where the State acted contrary to the Law of Nations.]... [Counsel] submits that we should not follow the highly persuasive judgments of the American courts. I cannot agree.



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