Kazemi & Anor v Iran & Ors

Zahra Kazemi was a Canadian-Iranian photojournalist who was tortured to death in Iran. 

Ms Kazemi was arrested during a visit to Iran in June 2003 while taking photographs of a protest outside Evin prison.  While in detention, she was interrogated, beaten and sexually assaulted.   Following the torture, Ms Kazemi was taken to hospital as she was suffering intestinal bleeding and a brain injury, but Iranian officials delayed contacting her family in order to prevent them from discovering the full extent of her injuries. 

Eventually Ms Kazemi’s family was made aware that she was in a critical condition in hospital, but were denied access to visit her.  Despite frantic efforts on her family and son’s behalf and the intervention of the Canadian consular authorities, Iranian authorities denied requests for an independent medical examination and treatment, and for her to be allowed to be transferred to Canada for treatment.  Zahra Kazemi was later declared brain-dead with no possibility of recovery, and was buried in Iran, despite many requests of her family to repatriate her body to Canada. Neither Iran nor the officials responsible for her torture and death have been held accountable. 

In 2006 Ms Kazemi’s son, Stephan Hashemi, brought a civil claim in the Québec courts against Iran and three officials he alleges were responsible for his mother’s torture and death: Ayatollah Ali Khamenei, Iran's Supreme Leader; Tehran's Chief Public Prosecutor, Saeed Mortazavi, who is alleged to have ordered Kazemi's arrest; and Mohammad Bakhshi, the former Deputy Chief of Intelligence for Evin Prison who it is alleged interrogated, physically assaulted and tortured Kazemi.  Ms Kazemi’s estate also brought a claim on her behalf. 

Iran argued that it and its officials are immune from suit and that the claims should be dismissed under the Canadian State Immunity Act.  In January 2011, the Québec Superior Court allowed Stephan Hashemi’s claim to proceed, on the basis of a specific exception in the State Immunity Act that allows claims for injuries suffered in Canada.  However, the claims of Ms Kazemi’s estate were dismissed on the ground that Iran and its officials were protected by state immunity.

Both sides appealed to the Québec Court of Appeal, and in May 2011 REDRESS was granted leave to appear in the proceedings as an intervener.  In August 2011, it filed a submission to the Court on the international law of state immunity as it applies to state officials, and the independent rights of family members of torture victims to remedy and redress. 

In August 2012 the Court of Appeal handed down its judgment, finding in Iran's favour that state immunity barred both claims. The claimants sought leave to appeal to the Supreme Court of Canada, and this was granted in March 2013. REDRESS was granted leave to intervene in the appeal, and filed its factum on 14 November 2013.  The Supreme Court heard oral argument in the case on 18 March 2014.

On 10 October 2014 the Supreme Court upheld the judgement of the Court of Appeal. The court found that the State Immunity Act applied to Iran and the individual officials, effectively ending the case in Canada. In writing for the court, Justice LeBel pointed to Parliament’s responsibility for creating new exceptions to state immunity, including for torture. In her dissent, Justice Abella stated, however, that there is no reason to include torture in the category of official state conduct attracting individual immunity and that equivocal customary international law should not be interpreted so as to block access to a civil remedy for what is unequivocally prohibited.

REDRESS is represented pro bono in the proceedings by Azim Hussain and Rahool Agarwal of Norton Rose Fulbright.

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