Torture death. But estate can't launch suit: ruling
By Monique Muise, The Gazette February 4, 2011
MONTREAL - The son of slain Canadian photojournalist Zahra Kazemi claimed a partial victory last week in his ongoing legal battle with the government of Iran, but acknowledged he still faces a long road.
After nearly seven years of legal wrangling, Stephan Hashemi found out on Wednesday that he will be permitted to proceed with a civil suit filed against the Iranian government for its alleged involvement in his mother's torture and death.
The 32-year-old had been seeking the right to sue Iran, its supreme leader, Ayatollah Sayyid Ali Khamenei, and two officials for authorizing and committing the violent rape that led to Kazemi's death in July 2003. While this week's decision represented a partial victory for Hashemi, Superior Court Justice Robert Mongeon also ruled that Kazemi's estate would not be allowed to proceed with its own $17-million suit against the Middle Eastern nation.
"That was really disappointing," said Hashemi. "What was really motivating for me was that this case could serve as a precedent ... so other victims of torture might have legal recourse ... on the other hand, it was good to hear that the judge had left open the option for my (personal) case."
Iran had argued that under Canada's State Immunity Act, neither its government nor its officials could be the targets of civil litigation in Canada. In his ruling, Mongeon agreed that while the estate's litigation was indeed subject to the Act and could therefore be blocked, Hashemi's case was a rare exception and could move ahead because his trauma occurred on Canadian soil.
Back in March, the judge commented that ruling on legal immunity when torture is involved creates "a certain complexity" and Hashemi's lawyer, Kurt Johnson, agreed that the case is indeed breaking new ground in Canada.
"As far as we know, it's the first time that acts of torture that have been committed against Canadians on foreign soil could be scrutinized at a trial in Canada," said Johnson yesterday. "This is a major development."
Kazemi, a Canadian citizen, was arrested for taking photographs outside a Tehran jail during a student protest. She died in prison without a single charge being laid against her, and was buried in Iran without an autopsy. In 2005, an Iranian physician who fled the country revealed he had examined Kazemi after her arrest and found evidence that she had been brutally beaten and sexually assaulted.
The two sides have been given 30 days to appeal the judge's ruling, said Johnson, adding that "it's safe to say that both parties are looking at the possibility of appeal."
That could mean several more years in court for Hashemi, but he said it's all part of the journey he agreed to undertake following his mother's death.
"It's certainly tiring, but at the same time ... my mother gave me everything," he said. "She was everything I had. It's an honour to assume this responsibility. And I have a responsibility to others -Canadians and Iranians. This is a symbolic case, and could still have a great impact."
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