The ECHR Court

The ECHR Court was also of the opinion that the immunity to a state was a concept of international law, by the fact of which one member country will come not come under the jurisdiction of another member country. Court also observed that granting immunity to a state to a member country especially in non-criminal cases adhered the genuine aim of staying with international law to promote synchronization and cordial relations between member countries by esteeming the other country’s sovereignty.

The ECHR Court also opined that the ECHR should as far as possible be construed in agreement with the other rules and regulations of international law of which it is a constituent , including those pertaining to State immunity. The actions which mirrored normally recognised as rules of public international law on immunity to State which might not in theory be regarded as causing a contradictory constraint on the right to approach to court as signified in Article 6, Section 1.

It is to be noted that within the convention structure, it has long been accredited that the privilege under the Article 3 not to be subjugated to demeaning or to suffering or inhuman conduct which preserves one of the basic values of democratic culture. Under no circumstances, no exception is granted to rights under Article 3 as it is an absolute right. Out of the various rights that have been explained in Article 3, torture assumes special significance which means intentional brutal treatment causing very grave a brutal suffering.

Thus, prevention of torture assumes great significance in other public international law. However, the Al-Adsani case is different where there is no criminal liability of an individual for stated cases where torture is not involved but the case is pertaining to unsusceptibility of state in civil claim for damages for torture inflicted within the jurisdiction of that country.

ECHR Court has to decide whether a State enjoys exemption from civil proceedings in another State where incidents of torture are happened. ECHR Court also noted down that in no international instruments, there is no provision of either civil proceedings or to exempt a State. ECHR Court also noted that no international law specifies that no State is entitled to exemption as regards to claims of civil nature for averred torture inflicted outside the forum country.

Further, according to the provisions of the 1978 Act, which grants exception to member countries as regards to personal injury unless the damage was caused within the United Kingdom jurisdiction, which was not opposing with those constraints usually recognized by the society of nations as an essential component of the policy of immunity to a state. On the basis of the above facts, the relevance by the English courts on the provisions of the 1978 Act to hold that Kuwait’s claim to State immunity has not resulted in unwarranted restriction on the plaintiff’s access to court.

In A v U. K, it was held that Article 1 and 3 taken together can impose constructive obligations on a State party to make sure that torture does not happen on its province. In Aksoy v Turkey, it was held that Article 3 and article 13 taken together inflicts an obligation on States to carry through a systematic and efficient investigation of any torture which happens on its territory. In Soering v U. K, the Court was aware of the jurisdictional limiting nature of article 3 in some scenarios.