CONCURRING OPINION OF JUDGE BIANKU

It is with great hesitation that I voted in favour of the majority ’ s conclusions in the present judgment. Although the developments in the area under consideration are presented in a very balanced way, I think that almost thirteen years after delivery, with a very narrow majority, of the judgment in Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001 ‑ XI , during which the matter in issue has been the subject of very significant developments, the present case should have been relinquished to the Grand Chamber in order to give it the opportunity to consider whether Al ‑ Adsani still remains good law.

DISSENTING OPINION OF JUDGE KALAYDJIEVA

The applicants in the present case sought to begin civil proceedings in the United Kingdom against the Kingdom of Saudi Arabia and against named State officials of that country for damage caused by acts of torture committed by those officials. The House of Lords unanimously held that their claims could not be allowed to proceed because Saudi Arabia benefited from State immunity , and that immunity also extended to the named officials.

The essence of the majority ’ s conclusion – that granting immunity from suit to States as well as to State officials in respect of such a claim constitutes a legitimate and proportionate restriction on the right of access to a court which cannot be regarded as incompatible with Article 6 § 1 of the Convention – follows the conclusions of the narrow majority in Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001 ‑ XI and what the majority view as the current state of public international law.

To my regret, I find myself unable to agree.

While it may be correct to conclude that by February 2012 ( see paragraph 198 of the judgment ), and prior to General Comment No. 3 (2012) of the Committee Against Torture (see paragraph 67), no jus cogens excepti on to State immunity had yet crystal lised and that – in view of when the event in the present case occurred – it is not necessary for the Court to examine subsequent developments such as the recent judgment of the International Court of Justice in Germany v. Italy (see paragraphs 88-94), that conclusion concerns only State immunity. On this point I not only share the doubts of some of the numerous dissenting judges in the case of Al ‑ Adsani (cited above) , but also find it difficult to accept that this Court had no difficulties in waiving the automatic application of State immunity and finding violations of the right of access to a court concerning disputes over employment (see Cudak v. Lithuania [GC], no. 15869/02, ECHR 2010, and Sabeh El Leil v. France [GC], no. 34869/05, 29 June 2011), but not concerning redress for torture – as in the present case.

Like Lord Justice Mance (see paragraph 17) , I find it difficult to “accept that general differences between criminal and civil law justif [y] a distinction in the application of immunity in the two contexts”, especially in view of developments in this field, not least following the findings of the House of Lords in the case of P inochet (No. 3) that there would be “no immunity from criminal prosecution in respect of an individual officer who had committed torture abroad in an official context.” I also find it “not easy to see why civil proceedings against an alleged torturer could be said to involve a greater interference in the internal affairs of a foreign State than criminal proceedings against the same person” and also “incongruous that if an alleged torturer was within the jurisdiction of the forum State, he would be prosecuted pursuant to Article 5 § 2 of the Convention against Torture .. . and no immunity could be claimed, but the victim of the alleged torture would be unable to pursue any civil claim”.

The present case raise s for the first time the question whether State officials can benefit from State immunity in civil torture claims, which has not yet been examined by the Court.

I am not convinced that this question should or could reasonably and necessarily be examined “applying the general approach set out in Al ‑ Adsani ” (see paragraph 199), in which this Court ’ s scrutiny was limited to State immunity and did not concern the compatibility of extending it to named State officials with the right of access to a court. In that regard I disagree with the somewhat declaratory nature of the majority ’ s following findings: “the immunity which is applied in a case against State officials remains ‘ State ’ immunity: it is invoked by the State and can be waived by the State. Where, as in the present case, the grant of immunity ratione materiae to officials was intended to comply with international law on State immunity, then , as in the case where immunity is granted to the State itself, the aim of the limitation on access to a court is legitimate” ( see paragraph 200).

I find the conclusions of the majority on this issue regrettable and contrary to essential principles of international law concerning the personal accountability of torturers that is reflected unequivocally in Article 3 of the European Convention on Human Rights taken in conjunction with Article 1 ; in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and in the very concept establishing the International Criminal Court . Contrary to the view of the majority, in my understanding these principles were intended and adopted specifically as special rules for ratione materiae exceptions from immunity in cases of alleged torture (see paragraph 201).

In that regard I find myself unable to agree with the findings of the majority that “ [ s ] ince an act cannot be carried out by a State itself but only by individuals acting on the State ’ s behalf, where immunity can be invoked by the State then the starting - point must be that immunity ratione materiae applies to the acts of [torture committed by] State officials” ( see paragraph 202). This appears to suggest that torture is by definition an act exercised on behalf of the State. That is a far cry from all international standards, which not only analyse it as a personal act, but require the States to identify and punish the individual perpetrators of torture – contrary to the “pragmatic understanding” of the majority that “[ i ]f it were otherwise, State immunity could always be circumvented by suing named officials”. I fear that the views expressed by the majority on a question examined by this Court for the first time not only extend State immunity to named officials without proper distinction or justification, but give the impression of also being capable of extending impunity for acts of torture globally.

To use the words of one of the dissenting judges in Al ‑ Adsani : “What a pity!”