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Publication:2001-XI
Title:Al-Adsani v. The United Kingdom
Application No:35763/97
Respondent:The United Kingdom
Referred by:
Date of reference by Commission:
Date of reference by State:
Date of Judgment:21-11-2001
Articles:3
6-1
Conclusion:No violation of article 3
No violation of article 6-1
Keywords:TORTURE / ACCESS TO COURT

Summary:
(Extract from press release) Sulaiman Al-Adsani, who has dual British and Kuwaiti nationality, was born in 1961 and lives in London. He is a pilot. The applicant's description of events underlying the dispute can be summarised as follows. The applicant served in the Kuwaiti Air Force during the Gulf War and,
after the Iraqi invasion, remained behind as a member of the resistance movement. He came into possession of sexual videotapes involving Sheikh Jaber Al-Sabah Al-Saud Al-Sabah ("the Sheikh"), who is related to the Emir of Kuwait. By some means these tapes entered general circulation, for which the applicant was held responsible by the Sheikh. 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, where he was falsely imprisoned for several days and repeatedly beaten by security guards. He was released on 5 May 1991, having been forced to sign a false confession. On or about 7 May 1991 the Sheikh took the applicant at gunpoint in a government car to the Emir of Kuwait's brother's palace. 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.

The applicant spent six weeks in hospital in England being treated for burns covering 25 per cent of his body. He suffered psychological damage and has been diagnosed as suffering from a severe form of post-traumatic stress disorder.

In August 1992 he instituted civil proceedings in England for compensation against the Kuwaiti Government and the Sheikh and, in December 1992, obtained a
default judgment against the Sheikh. In January 1994 the Court of Appeal granted a renewed application to serve the writ on the Kuwaiti Government. In May 1995 the High Court ordered that the action be struck out finding that State immunity applied under the State Immunity Act 1978 (the 1978 Act), which granted immunity to sovereign States for acts committed outside their jurisdiction, without an implied exception for acts of torture. This ruling was upheld by the Court of Appeal and the applicant was refused leave to appeal to the House of Lords. His attempts to obtain compensation from the Kuwaiti authorities via diplomatic channels have proved unsuccessful.

Mr Al-Adsani contended that the United Kingdom had failed to secure his right not to be tortured, contrary to Article 3, read in conjunction with Articles 1
(obligation to respect human rights) and 13 (right to an effective remedy). He also complained of a violation of his right of access to a court under Article 6 1.

Article 6-1
The Court noted that sovereign immunity was a concept of international law, by virtue of which one State was not subject to the jurisdiction of another. It considered that granting sovereign immunity to a State 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.

The Court further observed that the European Convention on Human Rights should so far as possible be interpreted in harmony with other rules of international law of which it formed part, including those relating to State immunity. It followed that measures which reflected generally-recognised rules of public international law on State immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 1.

In Al-Adsani v. the United Kingdom, while noting the growing recognition of the overriding importance of the prohibition of torture, the Court did not find it
established that there was yet acceptance in international law of the proposition that States were not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State. The 1978 Act, which grants immunity to States in respect of personal injury claims unless the damage was caused within the United Kingdom, was not inconsistent with those limitations generally accepted by the community of nations as part of the doctrine of State immunity. The application by the English courts of the provisions of the 1978 Act to uphold Kuwait's claim to immunity could not, therefore, be said to have amounted to an unjustified restriction on the applicant's access to court. It followed that there had been no violation of Article 6 1.

Article 3
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. In those circumstances, it could not be said that the United Kingdom was under a duty to provide a civil remedy to the applicant in respect of torture allegedly carried out by the Kuwaiti authorities. It therefore followed that there had been no violation of Article 3.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)