DISSENTING OPINION OF JUDGE FERRARI BRAVO

(Translation)

What a pity! The Court, whose task in this case was to rule whether there had been a violation of Article 6 § 1, had a golden opportunity to issue a clear and forceful condemnation of all acts of torture. To do so, it need only have upheld the thrust of the House of Lords’ judgment in Regina v. Bow Street Metropolitan Stipendiary and Others, ex parte Pinochet Ugarte (No. 3) ( judgment of 24 March 1999 [2000] Appeal Cases 147), to the effect that the prohibition of torture is now jus cogens , so that torture is a crime under international law. It follows that every State has a duty to contribute to the punishment of torture and cannot hide behind formalist arguments to avoid having to give judgment .

I say to “contribute” to punishment, and not, obviously, to punish, since it was clear that the acts of torture had not taken place in the United Kingdom but elsewhere, in a State over which the Court did not have jurisdiction.

But it is precisely one of those old formalist arguments which the Court endorsed when it said (in paragraph 61 of the judgment ) that it was unable to discern any rules of international law requiring it not to apply the rule of immunity from civil suit where acts of torture were alleged. And the Court went further, notwithstanding its analysis of the cases mentioned in paragraphs 62 to 65, concluding sadly in paragraph 66 that the contrary rule was not yet accepted. Quousque tandem ...!

There will be other such cases, but the Court has unfortunately missed a very good opportunity to deliver a courageous judgment .

DISSENTING OPINION OF JUDGE LOUCAIDES

I agree with the joint dissenting opinion of Judges Rozakis and Caflisch . Indeed, once it is accepted that the prohibition of torture is a jus cogens rule of international law prevailing over State immunity rules, no such immunity can be invoked in respect of any judicial proceedings whose object is the attribution of legal responsibility to any person for any act of torture. I cannot see why there should be a distinction between criminal and civil proceedings in this respect, as contended by the majority. In view of the absolute nature of the prohibition of torture it would be a travesty of law to allow exceptions in respect of civil liability by permitting the concept of State immunity to be relied on successfully against a claim for compensation by any victim of torture. The rationale behind the principle of international law that those responsible for atrocious acts of torture must be accountable is not based solely on the objectives of criminal law. It is equally valid in relation to any legal liability whatsoever.

However, I would prefer to adopt as my main reasoning for finding a violation of Article 6 in this case the same approach that I adopt in McElhinney v. Ireland ([GC], no. 31253/96, ECHR 2001-XI) and Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001-XI), which can be summed up as follows. Any form of blanket immunity, whether based on international law or national law, which is applied by a court in order to block completely the judicial determination of a civil right without balancing the competing interests, namely those connected with the particular immunity and those relating to the nature of the specific claim which is the subject matter of the relevant proceedings, is a disproportionate limitation on Article 6 § 1 of the Convention and for that reason it amounts to a violation of that Article. The courts should be in a position to weigh the competing interests in favour of upholding an immunity or allowing a judicial determination of a civil right, after looking into the subject matter of the proceedings.

It is true that in the present case the absurd and unjust results of applying a blanket immunity without regard to any considerations connected with the specific proceedings are more evident because the immunity prevented accountability for a grave violation of an international peremptory norm, namely the prohibition of torture. However, this does not mean that the relevant immunities can only be found to be incompatible with Article 6 § 1 in a case like the present one. In my opinion, they are incompatible with Article 6 § 1 in all those cases where their application is automatic without a balancing of the competing interests as explained above.