Canadian court makes split decision in Kazemi case
The Canadian Press
Published Thursday, January 27, 2011 2:01PM EST
MONTREAL - The family of a slain Canadian photojournalist has received mixed news in its attempt to sue the Iranian government over her death.
A Quebec judge ruled this week that the estate of Zahra Kazemi can't sue Iran but he said her son's case should be allowed to continue.
Superior Court Justice Robert Mongeon ruled Stephan Hashemi has the right to proceed with a lawsuit under an exception in Canada's State Immunity Act.
The decision comes after a court battle in which the Iranian government attempted to block the Kazemi family from suing for $17 million -- arguing it was immune from legal action in Canada.
Iran argued the State Immunity Act prevents foreign governments from being sued on Canadian soil.
Mongeon said the act wouldn't allow the estate to sue because Kazemi's death occurred in Iran. But an exception allows Hashemi's case to continue because his trauma occurred on Canadian soil.
Mongeon's ruling was met lukewarmly by Hashemi's defence team -- and appeals might be forthcoming, said lawyer Kurt Johnson.
"On the whole, the reaction is mixed: we're delighted that Stephan's recourse has been allowed to proceed against all the defendants but by the same token we're disappointed the estate's recourse has been blocked by the State Immunity Act," Johnson said Thursday.
"We're going to look at our options in terms of having that part of the decision reviewed."
Kazemi was an Iranian-Canadian citizen who was beaten, raped and killed in 2003 after being arrested for photographing relatives of detainees outside Evin prison in Tehran.
She was never formally charged with any crime and was quickly buried in Iran. Hashemi has tried unsuccessfully to have his mother's body repatriated.
Lawyers for the Kazemi estate and Hashemi argued the case should proceed in Canada and that it would be impossible to get a fair hearing in Iran.
In a 56-page decision, Mongeon waded into the issue of whether Iran and its officials benefit from immunity from civil prosecution.
"There are no exceptions to the general principle of state immunity other than those specifically mentioned in the SIA," Mongeon wrote.
"The legislation is restrictive in nature and should be narrowly interpreted and applied even though exceptions to a restrictive statute should, generally speaking, be more liberally interpreted and applied."
The civil suit named the Islamic Republic of Iran; its leader, Grand Ayatollah Ali Khamenei; former Tehran prosecutor Saeed Mortazavi; and prison official Mohammad Bakhshi.
Mongeon ruled that all defendants, including the individuals named in the suit, have a right to immunity.
The judge also dismissed a motion aimed at having the State Immunity Act declared unconstitutional.
"The statute is constitutionally valid and must be applied," Mongeon wrote.