...
PROCEDURE
1. The case originated in an application (no. 76642/01) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Béatrix de Boëry, wife of Castelnau d’Essenault, and a legal entity under French law, the association SOS Attentats, SOS Terrorisme (SOS Terrorist Attacks) (“the applicants”), on 11 September 2001.
2. The applicants were represented by Piwnica & Molinié, Partners, and Mr D. Bouthors, lawyers practising in the Conseil d’Etat and the Court of Cassation. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs.
3. The application was allocated to the Court’s Second Section (Rule 52 § 1 of the Rules of Court).
Jean-Paul Costa, the judge elected in respect of France, withdrew from sitting in the case. The Government accordingly appointed Vincent Coussirat-Coustère to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).
On 5 January 2006 a Chamber of that Section, composed of Ireneu Cabral Barreto, Karel Jungwiert, Volodymyr Butkevych, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet Fura-Sandström and Vincent Coussirat-Coustère, judges, and Sally Dollé, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
4. The composition of the Grand Chamber was determined in accordance with the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
5. On 19 October 2004, under the provisions of Article 29 § 3, the Chamber had decided to examine the admissibility and merits of the application at the same time. On 7 March 2006 the President of the Court decided to continue the application of that provision before the Grand Chamber.
6. The applicants and the Government each filed observations on the admissibility and merits of the case. Observations were also received from the British Government, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2); the applicants replied to those observations (Rule 44 § 5).
7. A hearing took place in public in the Human Rights Building, Strasbourg, on 21 June 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
MrsE. Belliard, Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
MrsA. –F. Tissier, Deputy Head of the
Human Rights Section, Directorate of Legal Affairs,
Ministry of Foreign Affairs,
MrsM. Mongin-Heuzé, drafting secretary,
Human Rights Section, Ministry of Foreign Affairs,
MrT. Chautagnat, representative of the Ministry of Justice,
MrP. Bodeau, member of the Directorate of Legal Affairs,
Ministry of Foreign Affairs,Counsel;
(b) for the applicants
MrE. Piwnica,
MrD. Bouthors, both members of the Conseil d’Etat
and Court of Cassation Bar,Counsel,
MrsR. Poupet, of the Paris Bar,Adviser.
The Court heard addresses by Mrs Belliard, Mr Piwnica and Mr Bouthors and also replies to questions put by the Court.
THE FACTS
8. Founded in 1986, the first applicant is an association named SOS Attentats, SOS Terrorisme (SOS Terrorist Attacks), which has its registered office in Paris. Its members are victims of terrorism and their heirs. Its object, as expressed in Article 2 of its constitution, is “defence of the interests of the victims of terrorist attacks”. The second applicant, Béatrix de Boëry, lives in Paris; her sister, Laurence de Boëry, died in the bomb attack on 19 September 1989 which forms the background to the present case.
9. On 19 September 1989 a bomb attack was committed against a DC 10 aircraft operated by the French company UTA; it blew up in flight above the Tenere desert. 170 people, including many French nationals, were killed.
After a judicial investigation in France, six Libyan nationals were committed for trial in the Paris Assize Court, sitting in a special composition. The defendants were Abdallah Senussi, the brother-in-law of Colonel Muammar Gaddafi and Head of the Libyan secret service, Ibrahim Naeli, Arbas Musbah, Abdelsalam Issa Shibani and Abdelsalam Hammudda, all secret service agents, and Ahmed Abdallah Elazragh, a civil servant of the Ministry of Foreign Affairs serving at the Libyan Embassy in Brazzaville. On 10 March 1999 they were sentenced in absentia to life imprisonment. They were also ordered to pay compensation for non-pecuniary damage to the victims’ families, who had participated in the trial as civil parties; during the hearing before the Grand Chamber, counsel for the applicants stated that certain sums had indeed been paid to the civil parties as compensation, including to Mrs de Boëry and her family, who had received between 100,000 French francs (FRF) (15,244.90 euros (EUR)) and FRF 200,000 (EUR 30,489.80).
10. On 16 June 1999 the applicants lodged a civil-party complaint (une plainte avec constitution de partie civile) against Colonel Muammar Gaddafi, the Libyan Head of State, for complicity in murder and destruction of property by use of an explosive substance which caused loss of life in furtherance of a conspiracy calculated to disturb public order through intimidation or terror.
11. On 6 October 1999 the investigating judge ruled that there was a case to answer.
12. On an application by the public prosecutor’s office, the Indictment Division of the Paris Court of Appeal upheld that ruling in a judgment of 20 October 2000, in which it held as follows.
“...
Although, as the civil parties submitted, the French courts have jurisdiction, by virtue of Article 113-7 of the Criminal Code and Articles 689 et seq. of the Code of Criminal Procedure, to judge serious crimes committed abroad where the victims are, as in the present case, of French nationality, their jurisdiction does not extend to a person accused of such a crime who enjoys immunity from jurisdiction.
The immunity from jurisdiction of a foreign head of State is not guaranteed either by an international treaty to which France is party or by any other instrument.
However, international custom – that term being taken to mean evidence of a general practice accepted as law by all – governs relations between States and has the same legal authority as a treaty, so that a State cannot be bound by custom unless it has consented to be so bound.
In the Preamble to the Constitution of 27 October 1946, later endorsed by a reference to it in the 1958 Constitution, France enshrined the authority of international custom in its domestic legal order in the following terms: ‘The French Republic, faithful to her traditions, complies with public international law.’
The immunity from jurisdiction of foreign heads of State, including de facto heads of State vested with effective authority within and outside their countries and received as heads of State abroad, has always been accepted by the international community, including France, as the ordinary French courts, and learned legal writers too, have always recognised the existence of that immunity. The civil courts have applied it on numerous occasions.
However, since the end of the Second World War immunity from jurisdiction, which was originally absolute, has been subject to limits.
Numerous international conventions ratified by France, including the London Agreement of 8 August 1945 setting up the International Military Tribunal which sat at Nuremberg, the Charter of the International Military Tribunal sitting at Tokyo, approved on 19 January 1946, the Resolution of the General Assembly of the United Nations of 11 December 1946, the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted on 30 November 1973, which came into force on 18 July 1976, United Nations Security Council Resolutions nos. 827 and 955, in which were adopted, respectively, the Statute of the International Criminal Tribunal for the former Yugoslavia at the Hague, and that of the International Tribunal for Rwanda at Arusha, and the Statute of the International Criminal Court, adopted on 17 July 1998, excluded that immunity for the most serious crimes, crimes against humanity, genocide, crimes committed in furtherance of apartheid and war crimes.
The first three of the above conventions make it clear that a defendant’s official status as head of State will not be considered an exculpatory excuse. The fourth lists representatives of the State among the persons held to be criminally liable at international level for the crime of apartheid. The next two provide that the status of head of State does not exonerate a defendant from criminal responsibility. The Statute of the International Criminal Court states that it applies to all persons in general, without any distinction based on official status.
These conventions, far from being exhaustive exceptions to absolute immunity, reflect, on the contrary, the will of the international community to prosecute the perpetrators of the most serious crimes, including those committed by a head of State in the performance of his duties, where these constitute international crimes contrary to society’s conscience.
Furthermore, the convention laying down the Statute of the International Criminal Court, which limits that court’s jurisdiction to crimes against humanity, genocide, apartheid and war crimes, and whose ratification by France was authorised by the Law of 30 March 2000, states in its Preamble that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’, and Article 22 provides that ‘conduct’ may be characterised ‘as criminal under international law independently of this Statute’.
The above convention thus acknowledges that it is the duty of States that have ratified it to mount prosecutions for international crimes, which cannot, by the terms of Article 22, be limited to crimes against humanity, genocide, crimes committed in furtherance of apartheid and war crimes, even if the defendant has the official status of head of State or government.
In addition to these instruments, judicial precedents, particularly the decisions of the House of Lords in the United Kingdom in the proceedings for the extradition of General Pinochet and the prosecution of General Noriega, an incumbent head of State, by the United States of America for drug trafficking, are evidence of a general practice accepted by all, including France, as currently valid law to the effect that immunity covers only acts of public authority or public administration performed by a head of State, provided that these are not considered international crimes.
It follows that no immunity can cover complicity in murder and destruction of property by an explosive substance causing loss of life in furtherance of a terrorist conspiracy in which a head of State ordered the destruction in flight by explosives of an airliner carrying 170 civilians.
The above facts, if established, would fall into the category of international crimes and could not, in any event, be considered part of the duties of a head of State.
...”
13. Principal State Counsel at the Paris Court of Appeal lodged an appeal on points of law. The Court of Cassation quashed the judgment of 20 October 2000, declared it void, without remitting the case, and ruled that there was no case to answer. Its judgment, rendered on 13 March 2001, included the following reasoning.
“...
Regard being had to the general principles of international law;
Whereas, in the absence of contrary international provisions binding on the parties concerned, international custom is opposed to the prosecution of incumbent heads of State in the criminal courts of a foreign State;
...
Whereas, in upholding the investigating judge’s decision that there was a case to answer, notwithstanding State Counsel’s submissions to the contrary, the Indictment Division held that although the immunity of foreign heads of State had always been accepted by the international community, including France, no immunity could cover complicity in the destruction of property through the use of an explosive substance causing loss of life in furtherance of a terrorist conspiracy;
But whereas, in making that ruling, when under international law as it stands at present the crime complained of, whatever its gravity, is not covered by any of the exceptions to the principle of immunity from jurisdiction for foreign heads of State in office, the Indictment Division infringed that principle;
It follows that the judgment is void and is hereby quashed without the case being remitted, as the Court of Cassation is able to apply the appropriate legal rule, thus putting an end to the dispute, as it is empowered to do by Article L. 131-5 of the Judicature Code.
...”
14. On 9 January 2004 an agreement was signed between the Gaddafi International Foundation for Charity Associations, the victims’ families, represented by the first applicant and the association Les familles du DC 10 UTA en colère! (The UTA DC 10 families in angry mood!) and the Bank for Official Deposits.
The preamble to the agreement is worded as follows.
“In the framework of the humanitarian activities of the Gaddafi International Foundation for Charity Associations throughout the world, and wishing to reach an overall settlement of the consequences of the explosion on board the DC 10 of flight UT 772 on 19 September 1989,
At the request of the associations representing the families of the victims of the explosion mentioned above,
And in consequence of the Libyan and French governments’ encouragement of the Gaddafi International Foundation for Charity Associations’ intervention in this humanitarian role,
The parties have agreed as follows ...”
Article 1 of the agreement provides that the Foundation “will make an ex gratia payment to the families of the victims of the explosion on board the aircraft amounting to the equivalent in euros of one million ... United States dollars [(USD)] for the family of each of the 170 victims ... In exchange for receipt of that compensation the members of the families will desist from any and all actions or claims against Libya or against Libyan citizens based on the consequences of the explosion on board the aircraft which have not yet been settled by a court and will waive the right to bring any kind of civil or criminal proceedings before any French or international court based on the explosion on board the aircraft.”
Articles 2 and 3 of the agreement state that the Gaddafi International Foundation for Charity Associations will pay USD 170 million to the Bank for Official Deposits, which will be responsible for establishing, with the above-mentioned associations, a foundation registered under French law whose task will be to pay the members of the victims’ families the sums to which they are entitled, in exchange for the handing-over of a duly signed waiver.
In addition, the two associations representing the families undertook “not to conduct any hostile action or dispute against Libya, Libyan nationals or Libyan legal entities relating to the explosion on board the aircraft” (Article 8 of the agreement).
At the hearing before the Grand Chamber, counsel for the applicants stated that, unlike members of her family but in common with other relatives of the victims, Mrs de Boëry had to date refused to sign the waiver provided for in the agreement; the sum due to her under it (EUR 70,000) had been deposited at the Bank for Official Deposits, and she would make her final decision in this respect in the light of the conclusions reached by the European Court of Human Rights in the instant case.
COMPLAINTS
15. Relying on Article 6 § 1, the applicants complained of a restriction on their right of access to a court as a result of the judgment of 13 March 2001, by which the Court of Cassation had held that there was no case to answer with regard to their civil-party complaint against Colonel Gaddafi on the ground that the crime complained of was not covered by any of the exceptions to the principle of immunity from jurisdiction of foreign heads of State in office.
Relying on Article 13 of the Convention, they also alleged that the Court of Cassation had thus deprived them of any “effective remedy” in respect of the infringement of the right to life enshrined in Article 2 of the Convention for which they sought to obtain redress; they also complained that no remedy was open to them whereby they could have challenged the lack of access to a court (which constituted a violation of Article 6 § 1 of the Convention).
THE LAW
16. The applicants considered that the Court of Cassation’s judgment of 13 March 2001 had frustrated their right of access to a court. In this connection they emphasised that the Court of Cassation had automatically applied the international custom concerning the immunity from jurisdiction of foreign heads of State in office “that it believed it had identified”, without seeking to establish the existence of competing considerations of public policy and, in particular, without taking into account that the crimes attributed to Colonel Gaddafi constituted a violation of human rights. In addition, they insisted on the seriousness of the damage for which they were unable to seek compensation as a result of that judgment, and stated that no alternative remedy was available to them. They complained of a violation of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] tribunal ...”
The applicants added that in holding, with regard to their civil-party complaint against Colonel Gaddafi, that there was no case to answer on the ground that the crime complained of was not covered by the exceptions to the principle of immunity from jurisdiction for foreign heads of State in office, the Court of Cassation in its judgment of 13 March 2001 had left them with no “effective remedy” for the infringement of the right to life, enshrined in Article 2 of the Convention, for which they sought compensation. They further complained that no remedy had been offered to them whereby they could have challenged the lack of access to a court (which constituted a violation of Article 6 § 1 of the Convention). They relied on Article 13 of the Convention, emphasising that it guaranteed the right to an effective remedy “notwithstanding that the violation has been committed by persons acting in an official capacity”. Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. The parties’ submissions
(a) The Government
17. The Government submitted that, through their diplomatic intervention, an agreement had been concluded on 9 January 2004 between the Gaddafi International Foundation for Charity Associations and the victims’ families, represented by the first applicant and the association Les familles du DC 10 UTA en colère! In application of that agreement, the victims’ families had each been paid USD 1 million (Article 3 of the agreement) in exchange for waiving the right “to bring any kind of civil or criminal proceedings before any French or international court based on the explosion on board the aircraft” (Article 1 of the agreement), and the applicant association, for its part, had given an undertaking “not to conduct any hostile action or dispute against Libya, Libyan nationals or Libyan legal entities relating to the explosion on board the aircraft” (Article 8 of the agreement). According to the Government, through the diplomatic activity which they had undertaken to that end, the applicants had obtained compensation. France had thus ensured that the rules of international law had not resulted in impairment of the victims’ substantive right.
The Government argued on that basis, as their main submission, that the application was inadmissible because the applicants were not “victims”. In that connection, referring in particular to Malama v. Greece ((dec.), no. 43622/98, ECHR 2001-II), they observed, firstly, that the question whether an applicant could claim to be the victim of a violation of the Convention arose at all stages of the proceedings. They further submitted that the reasoning followed by the Court in Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000‑I) applied, mutatis mutandis, in the present case: where a relative accepted a sum of compensation in settlement of civil claims and renounced further use of local remedies, he or she would generally no longer be able to claim to be a victim of a violation of the Convention within the meaning of Article 34.
18. “More simply”, as they put it, the Government alleged that the application should be struck out under Article 37 of the Convention; given that the agreement of 9 January 2004 could be seen as “circumstances lead[ing] to the conclusion” that the applicants did “not intend to pursue [their] application”, that the matter had been resolved or that it was no longer justified to continue the examination of the application.
19. The Government also alleged that the applicants had not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. In this connection they stated that the applicants had had the possibility of applying to the administrative courts, on the basis of the rule that public burdens must be borne equally, to obtain compensation for damage sustained as a result of the implementation in their case of a principle of public international law. At the hearing before the Grand Chamber they added that the applicants could also, in application of Article 706-3 of the Code of Criminal Procedure, have applied to the Criminal Damage Compensation Board (Commission d’indemnisation des victimes d’infractions) in order to obtain compensation for the damage sustained by them.
20. In their written observations, referring to the judgments in Perez v. France ([GC], no. 47287/99, ECHR 2004‑I) and Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001‑XI), the Government said they did not contest the applicability of Article 6 § 1 of the Convention in the present case. Subsequently, however, at the hearing before the Grand Chamber, they argued that the immunity from jurisdiction of foreign heads of State in office barred in limine an application to the courts and concluded from that fact that “the applicability of Article 6 § 1 of the Convention in the present case was ... far from obvious”.
21. As regards the merits, the Government submitted in the first place, with reference to the above-mentioned judgment in Al-Adsani, that the ruling that there was no case to answer had been given in pursuit of the legitimate aim of complying with international law, since it had been based on the immunity from both civil and criminal jurisdiction traditionally accorded to incumbent foreign heads of State by international custom. On that point they referred to the judgment of the International Court of Justice in Democratic Republic of the Congo v. Belgium (14 February 2002), submitting that it had always been accepted in international law that foreign heads of State in office enjoyed immunity attached to their person, which protected them from judicial proceedings until the end of their term of office; this included proceedings concerning their private conduct. To date, no national court had agreed to try an incumbent head of State on the ground that the nature of the alleged crimes placed them outside the protection of customary immunity. In the Pinochet case the House of Lords had lifted the immunity claimed by General Pinochet only because he was no longer in office and Chile was a party to the Convention against Torture (which the House of Lords had interpreted as a waiver of immunity in respect of crimes of torture). According to the Government, customary international law, as upheld by the International Court of Justice, required States to respect the principle of the immunity from jurisdiction of foreign heads of State in office: this amounted to an obligation.
In that context, the Government submitted, the immunity from jurisdiction enjoyed by an incumbent head of State did not mean that he could act with impunity, but that an attempt to establish his liability could be made only in very specific circumstances, such as when the State he represented or had represented decided to lift that immunity. Secondly, where a person had ceased to be head of State he no longer enjoyed to the full extent the immunity from jurisdiction formerly accorded under international law by other States. Thirdly, criminal proceedings could be brought against a head of State in certain international courts empowered to try the case. Moreover, he could be prosecuted in his own country.
Referring to the above-mentioned judgment in Al-Adsani, the Government went on to say that the restriction on the right of access to a court complained of by the applicants was proportionate to the aim pursued. They further submitted that the Court of Cassation did not a priori impose as an absolute principle the impossibility of instituting proceedings against a foreign head of State: a reading a contrario of the judgment given in the applicants’ case would suggest that the Court of Cassation might have taken a different line if the case had concerned a head of State no longer in office. Above all, the facts complained of by the applicants had given rise to criminal prosecutions in France. Investigations had been carried out and had made it possible to bring proceedings against six senior Libyan officials – five members of the secret service and a member of the diplomatic corps – who had been sentenced in absentia on 10 March 1999 by the Paris Assize Court, sitting in a special composition, to life imprisonment. The limitation applied in the present case had not therefore restricted the applicants’ access to the courts in a manner or to a degree such that the very substance of their right had been impaired.
The Government accordingly concluded, placing only the slightest weight on this last alternative submission, that the complaint was manifestly ill-founded.
(b) The applicants
22. The applicants replied that they were still “victims” notwithstanding the agreement of 9 January 2004. They pointed out in that connection that the proceedings before the Court had begun before that agreement had been signed and were directed not against Libya or Libyan citizens but against the French State. It could not therefore be argued on the basis of the terms of the agreement that they had undertaken not to pursue the proceedings before the Court. Since the domestic proceedings had not ended with a friendly settlement, the solution adopted by the Court in the Caraher decision cited by the Government was not transposable to their case. Citing Kaya v. Turkey (19 February 1998, Reports of Judgments and Decisions 1998‑I), they submitted that the Court should find, on the contrary, that since no procedural protection of the right to life had been put in place by France for the victims of terrorist attacks committed by foreign heads of State, they had not lost the status of victims within the meaning of Article 34 of the Convention.
23. Secondly, the applicants contested the Government’s argument that the application should be struck out under Article 37 of the Convention. They repeated their submission that the agreement of 9 January 2004 could not be seen as an undertaking on their part to withdraw from the present case and emphasised that they intended to maintain their application and that there was no good reason why the Court should decline all further examination of the case.
24. Replying to the objection of non-exhaustion of domestic remedies raised by the Government, the applicants submitted that, in the absence of a finding of Colonel Gaddafi’s guilt by the criminal courts, an application to the administrative courts for compensation for the damage sustained through the application of immunity from jurisdiction would have been illusory.
25. On the merits, the applicants pointed out that the Court had held in Al-Adsani, cited above, that the State enjoyed immunity from civil actions for damages in respect of acts of torture and that this immunity was to be distinguished from an individual’s criminal liability for such acts. But in the present case, they stressed, once they had chosen to pursue the path of a civil-party complaint, as they were entitled to do under French law, it was primarily the criminal liability of Colonel Gaddafi which was in issue, so that the type of immunity to which Al-Adsani related could not be relied on. They stated that, if the immunity from criminal jurisdiction of foreign heads of State in office had not been admitted and if the criminal court had examined the case as they requested and had convicted Colonel Gaddafi of the crime which they imputed to him, that court could have ruled on their claims for compensation for the damage resulting from that crime.
The applicants added that, in any event, the judgment in Al-Adsani, which acknowledged the existence of an immunity in international law, had been adopted by a slender majority of only nine votes to eight, which showed that the case-law was bound to evolve, especially as the development of international terrorism since 1991 – the date of the acts committed in the Al-Adsani case – had “raised the level of protection required by our democratic societies”. They dismissed the argument that there was an international custom whereby foreign heads of State in office enjoyed absolute immunity from jurisdiction: there was no consistent and general practice, supported by opinio juris, in this area; on the contrary, international law was moving towards the abolition of that immunity where the offences imputed to a foreign head of State constituted particularly serious crimes, such as terrorist acts resulting in loss of life. In particular, they considered that the Government’s reference, in this connection, to the judgment given on 14 February 2002 by the International Court of Justice was not relevant, since, in finding that an incumbent Minister of Foreign Affairs enjoyed immunity from criminal jurisdiction under international law, that court had cited, among other precedents, the judgment given by the French Court of Cassation in their case.
In any event, according to the applicants, the fact that certain States agreed to a barbarous standard of this nature did not prevent this Court, the guardian of human rights, from finding that the requirements inherent in the protection of fundamental rights in a democratic society had not been met. Further, given that the Convention was not a subsidiary text in relation to other norms of international law, it was not sufficient to note the mandatory nature of a provision of international law in order to conclude that a decision by a State, taken in application of such a provision, was, on that basis alone, compatible with the Convention. In reality, it appeared from Al‑Adsani (cited above, § 55) and the decision in Banković and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, § 57, ECHR 2001‑XII) that the Court had not recognised the superiority of traditional international law over the Convention but had, on the contrary, identified a conciliation rule that gave precedence to the Convention’s provisions over incompatible provisions of classic international law. In any event, according to the applicants, the immunity from jurisdiction of foreign heads of State in office, even supposing it was absolute, ought to give way before the fundamental right of victims of acts amounting to violations of human rights to have access to the justice system in order to obtain compensation for their loss.
2. Observations by the British Government, third-party intervener
26. The British Government emphasised that the immunity from jurisdiction of foreign heads of State in office, which stemmed from the principle of the sovereign equality of States, was governed by customary international law; it had recently been reaffirmed by the International Court of Justice in its judgment in Democratic Republic of the Congo v. Belgium (cited above) and by the Institut du droit international in a 2001 resolution (Annuaire de l’Institut, Vancouver Session, 2001, vol. II, p. 742), and the national courts in a number of States had reached a similar conclusion.
Thus, it was submitted that international law required all States to accord foreign heads of State in office immunity from the jurisdiction of their courts in criminal proceedings; this was an immunity ratione personae – it applied irrespective of whether the proceedings concerned official or private actions – and was absolute: in particular, neither the gravity of the offence imputed to a foreign head of State in office nor the status of the rule of international law which was said to have been violated, gave rise to an exception to that duty. The correct interpretation of international law was that they should also enjoy a general immunity from the civil jurisdiction of other States, given that court decisions to the effect that the immunity of foreign heads of State in office was more restricted in civil than in criminal proceedings suggested only that acts of a purely private character did not attract immunity.
27. The British Government concluded that Article 6 § 1 of the Convention was inapplicable: since international law required immunity from jurisdiction, all actions imputed to a foreign head of State in office and covered by that immunity fell outside the jurisdiction of the national courts and, consequently, of that provision. They accepted that the Court had dismissed this argument in Al-Adsani (cited above), but invited it to reconsider this issue in the light of the principle that the Convention fell to be interpreted and applied in accordance with international law as a whole.
However, in the event that the Court considered that Article 6 § 1 was applicable, the British Government invited it to confirm the approach taken in Al-Adsani (cited above), Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001‑XI), McElhinney v. Ireland ([GC], no. 31253/96, ECHR 2001‑XI), and Kalogeropoulou and Others v. Greece and Germany ((dec.), no. 59021/00, ECHR 2002‑X), and to hold that a limitation on a right of access to justice could not be regarded as disproportionate if it was necessary in order for the State Party to comply with its international law obligations. In other words, according to the British Government, Article 6 § 1 could not be interpreted as requiring a Party to the Convention to act in violation of international law.
3. The Court’s assessment
28. After the application had been lodged (11 September 2001), a new fact was brought to the Court’s attention: on 9 January 2004 an agreement was signed between the Gaddafi International Foundation for Charity Associations, the families of the victims (represented by the first applicant and by the association Les familles du DC 10 UTA en colère!) and the Bank for Official Deposits.
This agreement provides for payment by the Foundation of USD 1 million to the families of each of the 170 victims. It states that “[i]n exchange for receipt of that compensation the members of the families will desist from any and all actions or claims against Libya or against Libyan citizens based on ... the explosion on board the aircraft which have not yet been settled by a court and will waive the right to bring any kind of civil or criminal proceedings before any French or international court based on the explosion on board the aircraft”; in practical terms, under the agreement, each member of the families concerned is obliged to sign a waiver in order to receive his or her share. As to the applicant association, it has undertaken “not to conduct any hostile action or dispute against Libya, Libyan nationals or Libyan legal entities relating to the explosion on board the aircraft”.
29. In the Court’s view, it is necessary first of all to determine whether this new fact is such as to lead it to decide to strike the application out of its list of cases in application of Article 37 § 1 of the Convention, which provides:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
(a) The application of Article 37 § 1 (a) of the Convention
30. The Government seemed to wish to conclude from the agreement of 9 January 2004 that the applicants had agreed to desist from the proceedings before the Court and that, consequently, they no longer intended to pursue their application within the meaning of Article 37 § 1 (a) of the Convention.
While it is true that an applicant’s undertaking to withdraw from proceedings which he or she has initiated before the Court is capable of justifying the striking out of that application, in accordance with Article 37 § 1 of the Convention, such a waiver, in order to be valid, must be unequivocal (see Zu Leiningen v. Germany (dec.), no. 59624/00, ECHR 2005‑XIII). As has been noted above, the applicant association undertook, in signing the agreement, “not to conduct any hostile action or dispute against Libya, Libyan nationals or Libyan legal entities relating to the explosion on board the aircraft”; clearly, this phrase does not concern the proceedings before the Court, as these are directed against France. The second applicant has not to date accepted the amount to which she could lay claim under the agreement in her capacity as a family member of one of the victims, and has not signed the waiver which would represent the consideration for the payment; thus, even supposing that the terms of the agreement meant that this waiver would cover the proceedings before the Court, it must be recognised that the second applicant has not bound herself in this way.
31. This being so, in order to conclude that there can be no question of striking the application out of its list of cases in application of Article 37 § 1 (a), it is sufficient for the Court to note that the applicants have expressly stipulated that they intend to pursue it (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 41, 21 October 2002; see also, inter alia, Ohlen v. Denmark (striking out), no. 63214/00, § 25, 24 February 2005).
(b) The application of Article 37 § 1 (b) of the Convention
32. In order to conclude in the instant case that the matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for the applicant to pursue his application, it is necessary to examine, firstly, whether the circumstances complained of directly by the applicants still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed. This approach reflects the structure of the Convention’s supervisory machinery, which provides both for a reasoned decision or judgment as to whether the facts in issue are compatible with the requirements of the Convention (Article 45), and, if they are not, for an award of just satisfaction if necessary (Article 41) (see Pisano, cited above, § 42).
33. The Court makes clear, firstly, that the “matter” in question is the dispute which brings the applicants and France before it, at the nub of which is the denial of justice of which the applicants complained. In this connection it is recalled that they complained primarily of a violation of the right of the relatives of the victims of the attack of 19 September 1989 – including the second applicant – to have access to a court for the purpose of determining Colonel Gaddafi’s responsibility and, if appropriate, a sentence ordering him to provide reparation for the resulting damage; in particular, they complained of the Court of Cassation’s judgment in their case on 13 March 2001, in that it had ruled, on the basis of the immunity from jurisdiction of foreign heads of State in office, that there was no case to answer.
34. This having been emphasised, the Court notes that the agreement in question was concluded subsequent to the judgment of 13 March 2001, although – assuming it were proved – the alleged violation of the Convention resulting from the impugned denial of justice actually occurred as a direct result of that decision. It further notes that this agreement, to which the French State is not, as such, a party, is not intended to enable the applicants to have access to the French courts, nor has it done so in practice. The Court also observes that the Government did not claim that any other element or event subsequent to the lodging of the application with the Court would have such a consequence; on the contrary, they argued strongly that customary international law prevented a foreign head of State in office being brought before the courts of another State. It would thus appear, notwithstanding the conclusion of the agreement of 9 January 2004, that the key aspect of the applicants’ direct complaint persists, which suffices in principle to conclude that the dispute has not been “resolved” within the meaning of Article 37 § 1 (b).
Furthermore, the Court emphasises that the agreement does not make reparation for the consequences which could arise from a possible violation of the Convention as a result of these circumstances. Indeed, even supposing that the sums awarded to the victims’ families under the agreement were intended to cover the prejudice for which the applicants sought to obtain redress before the French courts and that this was sufficient for the Court to hold that the agreement thus corresponded fully to the purpose of an action for damages (that is, to have the person responsible for the prejudice identified and to obtain compensation for that prejudice), such prejudice is – at least in part – distinct from any which might result from the violation of their right to a court.
35. In conclusion, as the aforementioned conditions have not been met, there can be no question of striking the application out of the list in application of Article 37 § 1 (b).
(c) The application of Article 37 § 1 (c) of the Convention
36. In order to decide whether the application should be struck out of the list in application of Article 37 § 1 (c), the Court must consider whether the circumstances lead it to conclude that “for any other reason ... it is no longer justified to continue the examination of [it]”.
37. It is clear from this provision that the Court enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case.
Its case-law illustrates this point. The Court has, for example, ruled that in certain circumstances it may be appropriate to strike an application out of its list of cases under this provision on the basis of a unilateral declaration by the respondent Government even though the applicant wishes the examination of the merits of his case to be continued (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75-77, ECHR 2003‑VI; see also, in particular, Akman v. Turkey (striking out), no. 37453/97, ECHR 2001‑VI; Haran v. Turkey, no. 25754/94, 26 March 2002; Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005; and Van Houten v. the Netherlands (striking out), no. 25149/03, ECHR 2005‑IX). It has also proceeded in that manner in cases where the applicants had reached an agreement or settlement with the domestic authorities which largely satisfied the demands that they had made under the Convention, and had thus lost their victim status (see, for example, Calì and Others v. Italy (striking out), no. 52332/99, 19 May 2005, and La Rosa and Alba v. Italy (striking out), no. 58274/00, 28 June 2005). It has also struck applications out of its list in application of this provision on the ground that the applicant in question had died in the course of the proceedings and that no heir or close member of their family had expressed the wish to pursue the proceedings (see, for example, Gładkowski v. Poland (striking out), no. 29697/96, 14 March 2000, and Sevgi Erdoğan v. Turkey (striking out), no. 28492/95, 29 April 2003) or that the heir who expressed such an intention had no legitimate interest in that regard (see S.G. v. France (striking out), no. 40669/98, 18 September 2001), or, in the light of a lack of diligence on the part of the applicant (see, for example, Hun v. Turkey (striking out), no. 5142/04, 10 November 2005, and Mürrüvet Küçük v. Turkey (striking out), no. 21784/04, 10 November 2005) or his or her lawyer (see, for example, Falkovych v. Ukraine (striking out), no. 64200/00, 4 October 2005; and Fleury v. France (dec.), no. 2361/03, 6 July 2006), or on the ground that the applicant had failed to appoint a lawyer to represent him pursuant to Rule 36 §§ 2 and 4 (a) of its Rules of Court (see Grimaylo v. Ukraine (dec.), no. 69364/01, 7 February 2006).
38. In the instant case the Court does not doubt that, as the Government pointed out, the conclusion of the agreement of 9 January 2004 is due in large part to the latter’s diplomatic intervention. It also takes note of the resources that they have made available, essentially through the Bank for Official Deposits (a party to the agreement), to guarantee and facilitate payment of the sums due under that agreement to the family members of the victims of the attack of 19 September 1989.
The Court is, moreover, satisfied that this agreement is in line with the latter’s interests, a view that is supported by the fact that the associations representing those interests – including the applicant association – are signatories to it. It points out in this respect that, with a view to reaching “an overall settlement of the consequences of the explosion on board the DC 10 of flight UT 772”, the agreement provides for the payment of substantial sums to the families of the victims of the attack of 19 September 1989: USD 1 million for each victim. Some of those concerned, including members of the second applicant’s family, have already received the amount due to them under the agreement; others have to date refused to sign the waiver on which payment is dependent. Although the second applicant is one of those individuals, it appears from the statements made by her counsel at the hearing before the Grand Chamber that the amount payable to her under the agreement, namely EUR 70,000, remains available at the Bank for Official Deposits and that she will take her final decision in the light of the Court’s conclusions in the instant case (see paragraph 14 above).
The Court further considers that it must take into account the internal logic of the agreement of 9 January 2004, which is based on the payment of the substantial sums referred to above in exchange, in particular, for the waiver by the victims’ families of the right to bring any proceedings before the French courts against Libyan citizens based on the attack of 19 September 1989. It sees a certain contradiction in the attitude of the applicant association, which, despite being a signatory to an agreement worded in those terms, still wishes the Court to pursue the examination of complaints based on the impossibility for the victims’ relatives to have access to such proceedings.
The Court further observes that, as the Government pointed out, an investigation was opened in France following the attack of 19 September 1989, at the close of which six Libyan nationals were committed for trial before the Paris Assize Court, sitting in a special composition, and were sentenced in absentia to life imprisonment and ordered to pay compensation for non-pecuniary damage to the victims’ families, civil parties to those proceedings. At the hearing before the Grand Chamber the applicants’ counsel stated for the first time that various sums had indeed been paid in this connection to the civil parties, including to Mrs de Boëry and her family (who have received between FRF 100,000 (EUR 15,244.90) and FRF 200,000 (EUR 30,489.80) – see paragraph 9 above).
39. In sum, the conclusion of the agreement of 9 January 2004, the latter’s terms and the fact that the second applicant has obtained a judgment on the question of the responsibility of six Libyan officials are circumstances which, taken together, lead the Court to consider that it is no longer justified to continue the examination of the application within the meaning of Article 37 § 1 (c) of the Convention.
(d) Final considerations
40. Finally, the Court considers that no other element regarding respect for human rights as guaranteed by the Convention requires that the application be examined further under Article 37 § 1 in fine.
41. It follows from the above that it is appropriate to put an end to the application of Article 29 § 3 of the Convention and to strike the application out of the list, this conclusion making it unnecessary for the Court to examine the pleas of inadmissibility raised by the Government, based on the loss of the applicants’ victim status and a failure to exhaust domestic remedies.
For these reasons, the Court unanimously
Decides to strike the application out of its list.
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