Houshang Bouzari, Fereshteh Yousefi, Shervin Bouzari and Narvan Bouzari v. Islamic Republic of Iran

Court	Court of Appeal for Ontario, Canada
Case number	C38295
Decision title	Judgment on appeal from the judgment of Justice Katherine E. Swinton of the Superior Court of Justice dated May 1, 2002
Decision date	30 June 2004
Parties	Houshang Bouzari Fereshteh Yousefi Shervin Bouzari Narvan Bouzari Islamic Republic of Iran
Categories	Torture
Keywords	Jurisdiction; torture; obligation to prosecute
Links	Judgment
Other countries involved	Iran

Summary

In June 1993, Houshang Bouzari was in Tehran for business when he refused to accept the assistance offered by the then Iranian President for bringing into effect a project in an oil and gas field in Iran. Following Bouzari’s refusal to accept the offer, agents of the state of Iran entered his apartment, robbed and abducted him. He was put into prison where he was held for several months. After Bouzari was released in 1994, he and his family fled to Europe and eventually ended up in Canada in 1998.

On 24 November 2000, the Bouzari’s brought an action before the Superior Court of Justice in Ontario against the Islamic Republic of Iran and asked for compensation for damages suffered. On 1 May 2002, the Court dismissed the case because it did not have authority (jurisdiction) to hear the case as the claim was made against a foreign state.

On 30 June 2004, the Court of Appeal affirmed the decision of the Superior Court of Justice.

Procedural history

On 24 November 2000, Iranian national Houshang Bouzari, his wife and two children brought an action against the Islamic Republic of Iran in the Ontario Superior Court of Justice, Canada. The plaintiffs claimed compensatory damages for Houshang Bouzari’s kidnapping, false imprisonment, assault, torture, and death threats. In addition, they also claimed the return of the ransom money paid, as well as punitive damages.

On 1 May 2002, the Superior Court of Justice dismissed the action because it had no jurisdiction over Iran as it was entitled to state immunity from suit. The Court held that state immunity in this case could not be excluded on the basis of the State Immunity Act (SIA), public international law or the Canadian Charter of Rights and Freedoms.

Legally relevant facts

In 1992, Houshang Bouzari was to secure a deal between the National Iranian Oil Company and a consortium of companies interested in a development project in an oil and gas field in Iran. In June 1993, allegedly as a result of his refusal to accept the help of the then Iranian President for bringing the project into effect in return for a commission of $50 million, Iranian government agents broke into Bouzari’s apartment in Tehran, Iran. Houshang Bouzari was abducted and transferred to a State prison where he was repeatedly tortured and held for several months without due process. About a year later, Houshang Bouzari was released and managed to flee from Iran by paying a ransom. In July 1998, the Bouzari family arrived in Canada.

Core legal questions

Did the Superior Court of Justice err in dismissing Bouzari’s action because Iran was entitled to state immunity?

Specific legal rules and provisions

Constitution Act, 1982, Canadian Charter of Rights and Freedoms:

Section 7 - Life, liberty and security of person

Vienna Convention on the Law of Treaties, 1969, United Nations:

Article 31(3)(b) - General rule of interpretation

State Immunity Act, 1985, Canada:

Section 3 - State immunity
Section 5 - Commercial activity
Section 6 - Death and property damage
Section 18 - Application

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, UN General Assembly:

Article 1 - Definition of torture
Article 4 - Offence under national criminal law
Article 14 - Victims’ rights

Court's holding and analysis

The Court of Appeal analysed four issues that underpinned the decision of the Superior Court of Justice.

In respect of the first issue, the exercise of jurisdiction pursuant to rules of conflicts of laws, the Court ruled that there is no treaty or customary rule that obliges Canada to apply universal jurisdiction to a civil action for torture committed in another state (para. 28). Furthermore, although the Court held that the real and substantial connection test should be applied to determine whether it has jurisdiction over the civil action for torture abroad, the Court found the application of this test ‘to the circumstances of this case not easy’ (para. 38). On the basis of the particular circumstances, it could probably be concluded that there is no real and substantial connection to Ontario, meaning that the Court would lack jurisdiction to hear the case. However, the Court found the conclusion of lack of jurisdiction ‘troubling’ because the appellants would be left without a forum to bring their claims, while torture constitutes ‘a serious violation of both international human rights law and peremptory norms of public international law’ (paras. 33-38).

In respect of state immunity, the Court affirmed the customary law status of the principle of state immunity. The Court held that foreign states are immune from civil suits before Canadian courts, unless one of the exceptions provided for by the SIA applies. These three exceptions include 1) criminal proceedings, 2) proceedings regarding any death or personal or bodily injury, or any damage to or loss of property that takes place in Canada, and 3) proceedings concerning commercial activities of a state. With respect to the first exception, the Court held that the appellants requested compensatory damages, which is a remedy in civil proceedings (para. 44). With respect to the second exception, the Court held that the torture did not take place in Canada (para. 47). Lastly, the Court rejected the application of the third exception because the torture did not relate to any commercial activity (para. 55). Accordingly, the Court held that appellants’ action was barred by the SIA.

As regards the obligations incumbent on Canada by virtue of public international law, the Court held that a balance needs to be struck ‘between the condemnation of torture as an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other's jurisdiction. It would be inconsistent with this balance to provide a civil remedy against a foreign state for torture committed abroad’ (para. 95).

Lastly, in respect of the Canadian Charter of Rights and Freedoms, the Court held that section 3 of the SIA does not violate section 7 of the Charter (para. 103).

The Court dismissed the appeal and affirmed the decision of the Superior Court of Justice.

Further analysis

F. Larocque, ‘Bouzari v. Iran: Testing the Limits of State Immunity in Canadian Courts’, Canadian Yearbook of International Law, 2003, Vol. 41, pp. 343-386.

D. Matas, ‘Remedies for Victims Abroad’, Seminar on the International Criminal Court for Victims of Human Rights Violations in Asia, Manils (Philippines), 27 February 2004.

J. Horlick, J Cyr, S. Reynolds, A. Behrman, ‘American and Canadian Civil Actions Alleging Human Rights Violations Abroad by Oil and Gas Companies’, Alberta Law Review, Vol. 45(3), 2007-2008, pp. 653-690.

N. B. Novogrodsky, 'Immunity for Torture: Lessons from Bouzari v. Iran', The European Journal of International Law, November 2007, Vol. 18(5), pp. 939-953.

P. T. Moser, ‘Non-Recognition of State Immunity as a Judicial Countermeasure to Jus Cogens Violations: The Human Rights Answer to the ICJ Decision on the Ferrini Case’, Goettingen Journal of International Law, 2012, Vol. 4(3), pp. 809-852.