Prohibition against torture vs state immunity

Islamic Republic of Iran v Hashemi, 2012 QCCA 1449 (15 August 2012) Summary

The Court of Appeal in Quebec, Canada considered the tension between state immunity under the State Immunity Act 1985 (RSC), the prohibition against torture and the application of customary international law in relation to a Canadian citizen who had been subject to physical and sexual abuse and torture in Iran.

Facts

Zahra Kazemi, a Canadian citizen, photographer and independent journalist was arrested and detained by local authorities while taking photographs of protesters outside the Evin prison, Tehran. While Ms Kazemi was detained she was physically abused, sexually assaulted and tortured by Iranian authorities. During her detention, Ms Kazemi was transferred to a hospital and subsequently died after being taken off life support. The Canadian government made attempts to provide assistance to Ms Kazemi but were denied by Iranian authorities.

Due to Ms Kazemi suffering physical abuse, sexual assault and torture leading to her death, Ms Kazemi’s son, Stephen Hashemi in his personal capacity and as liquidator of Mz Kazemi’s estate (the Estate), brought an action against the defendants – the Islamic Republic of Iran and its Supreme Leader Ayatollah Sayyid Ali Khamenei; the Chief Public Prosecutor of Tehran, Saeed Mortazavi; and the Deputy Chief of Intelligence of the Evin Prison, Mohammed Bakshhi – on the basis that they had ordered or caused the detention and torture that caused the subsequent injuries of Ms Kazemi, in an official capacity on behalf of Iran and within its territory.

Mr Hashemi claimed a number of damages, including compensation for the physical and emotional pain suffered by Ms Kazemi and his own trauma caused by the loss of his mother.

At first instance in the Superior Court, Justice Mongeon held that the Act did not allow the Estate to bring an action against the defendants. However, Mr Hashemi’s personal claim could be founded under the exception to state immunity pursuant to section 6 of the Act.

The defendants appealed the decision to allow Mr Hashemi’s personal claim and Mr Hashemi appealed the decision against the Estate.

Legislative framework

State immunity is provided for in section 3 of the Act:

(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.

The exception to state immunity is founded in section 6 of the Act:

A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

(a) any death or personal or bodily injury, or

(b) any damage to or loss of property

that occurs in Canada.

The prohibition against torture is considered a jus cogens rule, from which no derogation is permitted under customary international law.

The right to compensation and redress for victims of torture is protected under article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Punishment, as entered into force in Canada in 1987:

1. 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, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

Decision

The Court of Appeal considered four issues:

• the scope of section 3 of the Act;
• whether the exception under section 6 of the Act applies;
• whether state immunity applies to public officials; and
• whether the respective sections under the Act are inoperative or invalid under the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms.

In relation to the first issue, the Court considered whether the prohibition against torture as a jus cogens principle under customary international law provides an exception to state immunity as posited in section 3 of the Act. In addressing this issue, the Court considered the decision of Jurisdictional Immunity of the State (Germany v Italy: Greece Intervening) [2012] ICJ (3 February 2012) which confirms that customary international law has not reached the stage where a breach of international law, even a principle that has “the status of jus cogens does not confer upon the Court a jurisdiction which it would not otherwise possess.”

Secondly, the Court found that the exception under section 6 of the Act does not apply to the Estate as Parliament’s intention is clear that any death or personal or bodily injury must have occurred in Canada. As the events that caused Ms Kazemi’s death occurred in Iran, the Court held that the Estate could not claim under the exception in the Act. Mr Hashemi’s own claim was also unsuccessful on the basis that he did not articulate the physical integrity that he suffered due to his alleged psychological trauma and distress. Further, the Court found there is no precedent that enlivens the exception to state immunity on the sole basis of psychological trauma and distress.

It was found that in relation to the third issue, the Chief Public Prosecutor of Tehran and the Deputy Chief of Intelligence of the Evin Prison were protected by state immunity under the Act as individual agents of a foreign state

Finally, the Court found that the right to a fair hearing as provided for under the Bill of Rights has not been infringed in this case. Further, section 3 of the Act does not override Mr Hashemi’s right to liberty or right not to be deprived of otherwise than in accordance with principles of fundamental justice under the Canadian Charter. Therefore, the Act cannot be considered to be inoperative or invalid by the Bill of Rights or the Canadian Charter.

Commentary

Foreign states are granted state immunity from the jurisdiction of Australian courts pursuant to the Foreign State Immunity Act 1985 (Cth). Any case concerning a person wishing to bring an action in relation to the death or personal injury of a person against a foreign state must have been caused by an act or omission in Australia.

If a similar factual situation to the case at hand arose for an Australian citizen, it would not waive the express provision of state immunity. Therefore, this case provides guidance to Victorian courts to interpret the scope of section 10 of the Victorian Charter of Human Rights and Responsibilities in situations where persons have been subject to torture, cruel, inhuman or degrading treatment in another jurisdiction as it confirms that citizens have no means of redress in their own jurisdiction due to the shortcomings in the development of customary international law and the express provision of state immunity in statute.

The decision is available online at: http://canlii.ca/en/qc/qcca/doc/2012/2012qcca1449/2012qcca1449.html

Arlou Arteta is a Law Graduate at Allens.