issued by the Registrar of the Court

ECHR 011 (2014)

14.01.2014

ECHR upholds House of Lords’ decision that State immunity applies in civil

cases involving torture of UK nationals by Saudi Arabian officials abroad

but says the matter must be kept under review

In today’s Chamber judgment in the case of Jones and Others v. the United Kingdom (application

nos. 34356/06 and 40528/06), which is not final¹, the European Court of Human Rights held, by six

votes to one , that there had been:

no violation of Article 6 § 1 (right of access to court) of the European Convention on Human Rights

either as concerned Mr Jones’ claim against the Kingdom of Saudi Arabia or as concerned all four

applicants’ claims against named Saudi Arabian officials.

The case concerned four British nationals who alleged that they had been tortured in Saudi Arabia

by Saudi State officials. The applicants complained about the UK courts’ subsequent dismissal for

reasons of State immunity of their claims for compensation against Saudi Arabia and its officials.

The Court found that the granting of immunity to Saudi Arabia and its State officials in the

applicants’ civil cases had reflected generally recognised current rules of public international law and

had not therefore amounted to an unjustified restriction on the applicants’ access to court. In

particular, while there was some emerging support at the international level in favour of a special

rule or exception in public international law in cases concerning civil claims for torture lodged

against foreign State officials, the weight of authority suggested that the State’s right to immunity

could not be circumvented by suing named officials instead. The House of Lords had considered the

applicants’ arguments in detail and dismissed them by reference to the relevant international law

principles and case-law. However, in light of the current developments in this area of public

international law, this was a matter which needed to be kept under review by Contracting States.

Principal facts

The applicants, Ronald Grant Jones, Alexander Hutton Johnston Mitchell, William James Sampson

(now deceased), and Leslie Walker, are British nationals who were born in 1953, 1955, 1959 and

1946 respectively.

The applicants all claim that they were arrested in Riyadh in 2000 or 2001, and subjected to torture

while in custody. Medical examinations carried out on returning to the United Kingdom all

concluded that the applicants’ injuries were consistent with their allegations.

In 2002 Mr Jones brought proceedings against Saudi Arabia’s Ministry of Interior and the official who

had allegedly tortured him claiming damages. His application was struck out in February 2003 on the

grounds that Saudi Arabia and its officials were entitled to State immunity under the State Immunity

Act 1978.

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

A claim by Mr Mitchell, Mr Sampson and Mr Walker against the four State officials 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 Saudi Arabia itself, the applicants

could pursue their cases against the individually 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 under

international law, which was incorporated into domestic law by the 1978 Act.

Complaints, procedure and composition of the Court

Relying on Article 6 § 1 (access to court), the applicants complained that the UK courts’ granting of

immunity in their cases meant that they had been unable to pursue claims for torture either against

Saudia Arabia or against named State officials. They alleged that this had amounted to a

disproportionate violation of their right of access to court.

The applications were lodged with the European Court of Human Rights on 26 July 2006 and

22 September 2006, respectively.

The Redress Trust, Amnesty International, the International Centre for the Legal Protection of

Human Rights and JUSTICE were given leave to submit written comments.

Judgment was given by a Chamber of seven judges, composed as follows:

Ineta Ziemele (Latvia), President,

Päivi Hirvelä (Finland),

George Nicolaou (Cyprus),

Ledi Bianku (Albania),

Zdravka Kalaydjieva (Bulgaria),

Vincent A. de Gaetano (Malta),

Paul Mahoney (the United Kingdom),

and also Françoise Elens-Passos, Section Registrar.

Decision of the Court

The Court recalled that everyone had the right under Article 6 § 1 to have any legal dispute relating

to his or her civil rights and obligations brought before a court, but that this right of access to court

was not absolute. States could impose restrictions on it. However, a restriction had to pursue a

legitimate aim, and there had to be a reasonable relationship between the aim and the means

employed to pursue it (the restriction must be proportionate).

As to the specific test in State immunity cases, the Court referred to its judgment of 2001 in the

similar case of Al-Adsani v. the United Kingdom (no. 35763/97). There, the Grand Chamber had

explained that sovereign immunity was a concept of international law under which one State should

not be subjected to the jurisdiction of another State and that granting immunity in civil proceedings

pursued the legitimate aim of complying with international law to promote comity and good

relations between States through the respect of another State’s sovereignty. That being the case.

the decisive question when examining the proportionality of the measure was whether the

immunity rule applied by the national court reflected generally recognised rules of public

international law on State immunity. In Al-Adsani, which concerned the striking out of a torture

claim against Kuwait, the Court had found it established that there was not, at the time of its

judgment in that case, acceptance in international law of the proposition that States were not

entitled to immunity in respect of civil claims for damages concerning alleged torture committed

outside the State. There had therefore been no violation of Article 6 § 1.

In the applicants’ case, the Court accepted that the restriction on access to court as regards the

claims against Saudi Arabia and the State officials had pursued the legitimate aim of promoting good

relations between nations. It therefore applied the approach to proportionality set out in Al-Adsani.

The main issue of the applicants’ case was therefore whether the restrictions on access to court

arising from State immunity had been in conformity with generally recognised rules of public

international law.

As concerned the claim against the Kingdom of Saudi Arabia, the Court had to decide whether it

could be said that at the time Mr Jones’ claim had been struck out (in 2006) there was, in public

international law, an exception to the doctrine of State immunity in civil proceedings where

allegations of torture had been made against that State. The Court considered whether there had

been an evolution in accepted international standards on immunity in such torture claims lodged

against a State since Al-Adsani. For the Court, the conclusive answer to that question was given by

the judgment of the International Court of Justice (ICJ) in February 2012 in the case of Germany v.

Italy, where the ICJ had rejected the argument that a torture exception to the doctrine of State

immunity had by then emerged. The Court therefore concluded that the UK courts’ reliance on State

immunity to defeat Mr Jones’ civil action against Saudi Arabia had not amounted to an unjustified

restriction on his access to court. Therefore there had been no violation of Article 6 § 1 as concerned

the striking out of Mr Jones’ complaint against Saudi Arabia.

As concerned the claims against the State officials, again the sole matter for consideration was

whether the grant of immunity to the State officials reflected generally recognised rules of public

international law on State immunity. The Court was of the view, after an analysis of national and

international case-law and materials, that State immunity in principle offered State officials

protection in respect of acts undertaken on behalf of the State in the same way as it protected the

State itself; otherwise, State immunity could be circumvented by the suing of named individuals. It

then turned to consider whether there was an exception to this general rule in cases where torture

was alleged. It reviewed the position in international law and examined international and national

case-law. It noted that there was some emerging support at the international level in favour of a

special rule or exception in public international law in cases concerning civil claims for torture lodged

against foreign State officials. However, it concluded that the weight of authority was still to the

effect that the State’s right to immunity could not be circumvented by suing named officials instead,

although it added that further developments could be expected. The House of Lords in the

applicants’ case had carefully examined all the arguments and the relevant international and

comparative law materials and issued a comprehensive judgment with extensive references. That

judgment had been found to be highly persuasive by the national courts of other States.

The Court was therefore satisfied that the granting of immunity to State Officials in the applicants’

civil cases had reflected generally recognised current rules of public international law and had not

therefore amounted to an unjustified restriction on their access to court. Accordingly, there had

been no violation of Article 6 § 1 as regards the applicants’ claims against named State officials.

However, in light of the developments underway in this area of public international law, it added

that this was a matter which needed to be kept under review by Contracting States.

Separate opinions

Judge Kalaydjieva expressed a joint partly dissenting opinion and Judge Bianku expressed a

concurring opinion. These opinions are annexed to the judgment.

The judgment is available only in English.