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31-Oct-2004

Torture cases highlighted in the British courts.

by: Carla Ferstmann and Rosanna Mesquita

London: UK must not be a safe haven for torture.
Today, the trial of Mr Faryadi Sarwar Zardad, an Afghan national, opens at the Old Bailey in London where he will be charged with conspiracy to torture and conspiracy to take hostages. He is reported to have come to the United Kingdom in 1998 and has been living in South London until his arrest in July 2003. His accusations included alleged kidnapping of aid-workers.

The conspiracy to torture indictment reads: “Between 31st December 1991 and 30th September 1996 in Afghanistan [he] agreed with others that a course of conduct would be pursued which if the agreement was carried out in accordance with those intentions would necessarily amount to or involve the commission of the offence of torture”.

As part of its international obligations under the UN Torture Convention, the British government made torture a statutory crime in the UK in 1988, regardless of where the torture was perpetrated and of the nationality of the torturer, giving UK courts jurisdiction to hear such cases.

The Legal Director of REDRESS, Carla Ferstman, says: “We believe that this case is the first of its kind to proceed to trial since section 134 of the Criminal Justice Act was brought into force 16 years ago. This is a step in the right direction.” REDRESS calls on the British authorities to ensure that the authorities effectively investigate and where there is evidence, prosecute alleged perpetrators of torture found to be residing in the United Kingdom in compliance with its obligations under the UN Torture Convention. In this way, the United Kingdom cannot become a safe haven for those accused of this heinous crime.

A brief note on Section 134 of the Criminal Justice Act; it was enacted in order to implement the UK's obligations under the United Nations Convention against Torture, which it ratified in 1985. On the basis that the crime of torture is so heinous that it offends international sensibilities and therefore that every State has an interest and a duty to ensure that this crime does not go unpunished, Section 134 allows UK authorities to investigate, and where sufficient evidence exists, to prosecute persons accused of torture no matter where they are from and irrespective of where the torture took place.

Landmark ruling that foreign torturers can be sued in UK Courts

Today the Court of Appeal unanimously ruled that foreign officials cannot be shielded by immunity to prevent a victim from pursuing their claim for torture before a UK Court.

The Court of Appeal found that: “it can no longer be appropriate to give blanket effect to a foreign state’s claim to state immunity ... in respect of a state official alleged to have committed acts of systematic torture.” This judgment now allows the four British victims to continue with their civil claims for torture against a number of Saudi officials. Some of these victims were detained in December 2000, severely tortured over a period of two years and convicted on confessions extracted through torture.

“This is a great day, not only for these British nationals who have fought hard to bring their claim before the UK Courts, but for all torture victims who have been left without any form of reparation, including a judicial recognition of the torture they endured” said Carla Ferstman, the Director of REDRESS.

The State Immunity Act 1978 remains one of the major hurdles barring torture victims right to reparation in the UK. This judgment opens the way for state officials to be held accountable for torture regardless of where it was perpetrated. No longer will officials or the state be able to deny that torture took place. It will also act as deterrent, warning individuals that they can no longer escape judicial scrutiny for their heinous crimes.

Source: The Redress Trust