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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Harb v HRH Prince Abdul Aziz [2014] EWHC 1807 (Ch) (09 June 2014) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2014/1807.html Cite as: [2015] 1 All ER 77, [2014] WLR 4437, [2014] 1 WLR 4437, [2014] WLR(D) 248, [2014] EWHC 1807 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Mrs Janan George Harb |
Claimant |
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- and - |
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HRH Prince ![]() ![]() |
Defendant |
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Mr. Edward Fitzgerald QC and Mr Tom Hickman (instructed by Neumans Solicitors LLP) for the Claimant/Respondent
Hearing date: 1 May 2014
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Crown Copyright ©
Mrs Justice Rose :
"from a breach of an agreement made between the Defendant and Mrs Janan George Harb in 2003 by which the Defendant agreed to pay Mrs Harb the sum of £12 million and to transfer to her the properties at 108 and 129 Pier House, Cheyne Walk, London ("the Properties")."
The issues raised by the Prince's application
The relevant domestic and international law instruments
"20. Heads of State.
(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to—
(a) a sovereign or other head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants."
"Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission."
"The correct way in which to apply Article 39(2) of the Vienna Convention to a former head of state is baffling. To what "functions" is one to have regard? When do they cease since the former head of state almost certainly never arrives in this country let alone leaves it? Is a former head of state's immunity limited to the exercise of the functions of a member of the mission, or is that again something which is subject to "necessary modification"? It is hard to resist the suspicion that something has gone wrong. A search was done on the parliamentary history of the section. From this it emerged that the original section 20(1)(a) read "a sovereign or other head of state who is in the United Kingdom at the invitation or with the consent of the Government of the United Kingdom." On that basis the section would have been intelligible. However it was changed by a Government amendment the mover of which said that the clause as introduced "leaves an unsatisfactory doubt about the position of heads of state who are not in the United Kingdom"; he said that the amendment was to ensure that heads of state would be treated like heads of diplomatic missions "irrespective of presence in the United Kingdom." The parliamentary history, therefore, discloses no clear indication of what was intended. However, in my judgment it does not matter unduly since Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law."
"We have, therefore, to be robust in applying the Vienna Convention to heads of state "with the necessary modifications". In the case of a head of state, there can be no question of tying Article 39(1) or (2) to the territory of the receiving state, as was suggested on behalf of the appellants. Once that is realised, there seems to be no reason why the immunity of a head of state under the Act should not be construed as far as possible to accord with his immunity at customary international law, which provides the background against which this statute is set:"
"The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state, each and every one declines to exercise by means of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction."
and went on to say that rule was 'laid down absolutely and without any qualification'.
i) The immunity enjoyed by a head of state in power is a complete immunity attaching to the person of the head of state and rendering him immune from all actions or prosecutions whether civil or criminal and whether or not they relate to matters done for the benefit of the state. This immunity is said to be granted ratione personae.
ii) At common law, a former head of state enjoys more limited immunity once he ceases to be head of state. He loses immunity ratione personae and enjoys instead an immunity ratione materiae, that is immunity in relation to his official acts during his tenure in post. He can be sued on his private obligations: see page 202F-H and the authorities cited there.
iii) Senator Pinochet was entitled to immunity from the charges of murder and conspiracy since these were official acts committed whilst he was in office. But to grant immunity in respect of the international law crime of torture would frustrate the application of the Torture Convention 1984, to which Chile was a signatory state. Senator Pinochet therefore did not have immunity in respect of charges of torture or conspiracy to torture after the coming into force in the United Kingdom of the Criminal Justice Act 1988 which implemented that Convention.
"The immunity of a serving head of state is enjoyed by reason of his special status as the holder of his state's highest office. He is regarded as the personal embodiment of the state itself. It would be an affront to the dignity and sovereignty of the state which he personifies and a denial of the equality of sovereign states to subject him to the jurisdiction of the municipal courts of another state, whether in respect of his public acts or private affairs. His person is inviolable; he is not liable to be arrested or detained on any ground whatever. The head of a diplomatic mission represents his head of state and thus embodies the sending state in the territory of the receiving state. While he remains in office he is entitled to the same absolute immunity as his head of state in relation both to his public and private acts.
This immunity is not in issue in the present case. Senator Pinochet is not a serving head of state. If he were, he could not be extradited. It would be an intolerable affront to the Republic of Chile to arrest him or detain him."
Lord Pannick argues that it is as much an affront to the state to allow suits against the head of state after their death as it is to allow them before their death.
"S'il est venu en voyageur, sa dignité seule, et ce qui est dû à la nation qu'il représente et qu'il gouverne, le met à couvert de toute insulte, lui assure des respects et toute sorte d'égards, et l'exempte de toute juridiction.""
"It is elementary law that diplomatic immunity is not immunity from legal liability but immunity from suit … Statutes relating to diplomatic immunity from civil suit are procedural statutes."
"A question which arises from time to time and is not answered with absolute clarity by the Convention is whether Article 31.1 of the Convention precludes the receiving State from holding an inquest following the death of a diplomat. The practice which had earlier developed in the United Kingdom was that an inquest was not held under these circumstances. In 1913 the Foreign Office Legal Adviser was reluctant to say that as a matter of international law: 'the death of a diplomat is in no circumstances a subject for inquisition by the coroner. In the case of the body of a diplomat being found in circumstances which indicate foul play it is obviously in the interests of justice that an inquiry should be held and evidence taken on oath.'12 Under Article 31.1 of the Convention, the holding of an inquest may be regarded as an exercise of civil or administrative jurisdiction over the person of the deceased diplomat. Although his functions have come to an end with his death, his immunities under article 39.2 of the Convention subsist for a 'reasonable period'. It is usual for a diplomatic mission to prefer that no inquest should take place, and it appears to be general practice that inquests or public inquiries into the death of diplomats do not take place unless the mission consents.
12 VII BDIL 809. Satow (5th edn 1979) para 15.17 gives the example of a suicide in the British Embassy at Madrid in 1921, where evidence taken in the embassy from the ambassador and some mission staff was drawn up in a proces-verbal. See also Lyons, 'Diplomatic Immunity: Some Minor Points', 1958 BYIL 373; Salmon ( 1994) para 402."
"The principle of sovereign immunity is not founded on any technical rules of law: it is founded on broad considerations of public policy, international law and comity."
"188. The Court has previously explained that sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State. The grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State's sovereignty …
189. As to the proportionality of the restriction, the need to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity, has led … the Court to conclude that measures taken by a State which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1. The Court explained that just as the right of access to court is an inherent part of the fair trial guarantee in Article 6 § 1, so some restrictions must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity …"
"201 Since measures which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court, the sole matter for consideration in respect of the applicants' complaint is whether the grant of immunity ratione materiae to the State officials reflected such rules."
"198. However it is not necessary for the Court to examine all of these developments in detail since the recent judgment of the International Court of Justice in Germany v. Italy … - which must be considered by this Court as authoritative as regards the content of customary international law - clearly establishes that, by February 2012, no jus cogens exception to State immunity had yet crystallised."
"The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally 'recognised' fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice."
Note 1 The closest they have come is that Mr Fitzgerald QC drew my attention to a sentence from Satow’s Diplomatic Practice (6th edn by Sir Ivor Roberts) which contains under the heading ‘Immunity of a Former Head of State’ the sentence ‘His personal immunity ceases when a head of state is no longer, for whatever reason, in office’. [Back]