The High Court in London has today, Monday 6th June, published its ruling concerning why the former king of Spain was not entitled to state immunity in a claim for harassment brought against him by his former girlfriend, Corinna zu Sayn-Wittgenstein-Sayn earlier this year.
The court ruling entitled Zu Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso Víctor María de Borbón y Borbón is published in full below.
” The former king of Spain was not entitled to state immunity in a claim for harassment brought against him by his ex-girlfriend.
Mr Justice Nicklin so held when dismissing an application by the defendant, His Majesty Juan Carlos Alfonso Víctor María de Borbón y Borbón, in response to a claim for harassment brought against him by the claimant, Corinna zu Sayn-Wittgenstein-Sayn, that he was entitled to immunity from the jurisdiction of the English courts.
Mr Justice Nicklin said that the claimant was a Danish national who had been a resident of Monaco since 2008. She also lived in London and Shropshire.
The defendant had been the king of Spain and head of state from November 22, 1975 until his abdication on June 18, 2014, at which point his son, King Felipe VI, became king of Spain and head of state.
The defendant retired from public life on June 2, 2019. From August 2020, the defendant had been living in Abu Dhabi in the United Arab Emirates.
It was common ground that the claimant and the defendant had been in a relationship from 2004 until 2009.
In October 2020, the claimant issued a claim form seeking damages and an injunction against the defendant on the grounds that he had pursued a course of conduct against her that, she alleged, amounted to harassment in breach of section 1 of the Protection from Harassment Act 1997.
It was common ground between the parties that, for the purposes of the present hearing only and the argument on immunity, the court would assume the matters pleaded in the particulars of claim to be true. At the present stage, the court did not have, and there had been no investigation of, any evidence relating to the alleged incidents.
The acts of harassment alleged against the defendant included: (i) placing the claimant and her homes under covert surveillance by agents of the Spanish national intelligence agency, the Centro Nacional de Inteligencia, (ii) engaging in a course of conduct designed to undermine the claimant’s personal and commercial relationships and/or to state falsely that she had stolen from the defendant; and (iii) spreading false information to the media, intending that it should be published and damage the claimant’s reputation.
The defendant applied for a declaration that under the State Immunity Act 1978 he was entitled to immunity from the jurisdiction of the English courts in his capacity as a senior member of the Spanish royal family and royal house of Spain.
He claimed personal immunity under section 1 and either section 20(1)(a) as “a sovereign or other head of state” or section 20(1)(b) as a member of the present king’s family forming part of his household, or alternatively, functional immunity under section 14(1)(a) in respect of pre-abdication acts done in his public capacity.
While it was clear that the defendant retained a special, and unprecedented, status of “King Emeritus” under the law and constitution of Spain, it was equally clear that there was only one king of Spain and head of state of Spain and, since the defendant’s abdication, that had been his son, King Felipe VI.
Section 20 of the 1978 Act conferred immunity on the head of state (and associated personnel). It did not, by section 20(1)(a) confer, and extend, that personal immunity to a former head of state, however much he or she might retain a special and respected position within the relevant state.
As a matter of statutory construction, if the words “sovereign” and “head of state” in section 20(1)(a) were read disjunctively, then the word “other” would be redundant. The plain reading of the subsection indicated that, for those countries where it applied, the sovereign would be the head of state.
Whatever his special constitutional position following abdication, the defendant was neither the sovereign nor the head of state of Spain. Since abdication, he was not entitled to personal immunity under section 20(1)(a).
As to the issue under section 20(1)(b), there was no doubt that the defendant remained a member of the Spanish royal family, as an ascendant in the first degree of the present king. The real issue was whether the defendant was, now, a member of the king’s household so as to bring him within section 20(1)(b).
Fundamentally, the assessment of “household” was a factual one, but it was an assessment that had to be conducted in accordance with established principles. The plain fact was that the defendant was not a dependent of King Felipe VI, the key factor to qualify as a member of the “household”. More widely, the defendant did not live with the current king; he did not even live in Spain.
The functional definition of “household” did not embrace those closely assisting the head of state to discharge his responsibilities, but even had that been the test, the defendant would not have qualified. Whatever the extent of the assistance the defendant provided prior to his retirement from public life, since then he had discharged no such function.
Being simply a member of the king’s family clearly could not be sufficient as otherwise the reference to “household” in section 20(1)(b) would be redundant. While the constitution of Spain therefore acknowledged and respected the defendant’s position, and conferred certain honours and privileges to reflect that, it provided no continuing role for the defendant to perform.
Since his retirement from public life, the defendant had discharged no public functions in support of the royal family or Spanish state, and he had lived in the United Arab Emirates since August 2020. On a simple reading of section 20(1)(b) the term “household” meant more than “family member”. In those circumstances, the defendant was not a member of the household of the king so as to bring him within section 20(1)(b).
The issue of functional immunity under section 14, in respect of acts of alleged harassment that pre-dated the defendant’s abdication, was more difficult.
The boundary between a private act and a sovereign/public act was not always easy to draw. The court had to focus on the relevant act that formed the basis of the claim and determine whether, in the whole context in which the claim against the state was made, it ought to be considered as fairly within an area of activity of a private law character, in which the state had chosen to engage, or whether the relevant act ought to be considered as having been done outside that area, and within the sphere of governmental or sovereign activity.
Applying that test, the outcome was clear. The claim for functional immunity would fail.
The claim for harassment, made up of several constituent elements alleged against the defendant, was not (even arguably) within the sphere of governmental or sovereign activity. The alleged course of conduct amounting to harassment was not of its own character a governmental act. On the contrary, harassment was an act that any private citizen could perform.
Could functional immunity nevertheless be claimed in respect of individual acts relied upon as part of the course of conduct amounting to harassment?
In respect of the alleged targeting of the claimant’s home by the Centro Nacional de Inteligencia, the operation was said to have been directed by its head, General Sanz Roldán, “under the direction or with the consent of the defendant” utilising “armed operatives from a Monégasque security company”.
The precise circumstances of the alleged trespass into the claimant’s property were, at the moment, unclear.
For a claim to state immunity, there was a big difference between a mission to gain access to the claimant’s property which was authorised, directed, and executed by Centro Nacional de Inteligencia operatives, and a mission that was carried out by “contractors”, with which the Spanish state had no involvement.
Both could have been “directed” by the defendant, but only in respect of the former could there be any conceivable claim to functional immunity.
The claim would therefore continue. In the interests of clarity, the claimant would be required to amend her particulars of claim to make clear that acts alleged against General Sanz Roldán were said to have been carried out by him in his personal capacity, not as head of the Centro Nacional de Inteligencia or other official capacity”.