CASE OF NAIT-LIMAN v. SWITZERLAND

SECOND SECTION

CASE OF NAIT-LIMAN v. SWITZERLAND

(Application no. 51357/07)

JUDGMENT

STRASBOURG

21 June 2016

THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 15/03/2018

This judgment may be subject to editorial revision.

In the case of Nait-Liman v. Switzerland,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Işıl Karakaş, President,
Nebojša Vučinić,
Helen Keller,
Paul Lemmens,
Egidijus Kūris,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 31 March and 8 December 2015 and 17 May 2016:

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 51357/07) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tunisian national who has acquired Swiss nationality, Mr Abdennacer Naït-Liman (“the applicant”), on 20 November 2007.

2. The applicant was represented by Mr F. Membrez, a lawyer practising in Geneva. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice.

3. Relying on Article 6 § 1 of the Convention, the applicant alleges that the refusal by the Swiss civil courts to examine his civil claim for compensation in respect of the non-pecuniary damage caused by his alleged torture in Tunisia infringed his right of access to a court.

4. On 30 November 2010 the application was communicated to the Government.

5. The Redress Trust and the World Organisation Against Torture (“the third-party interveners”), the latter being represented by the former, were given leave to intervene in the written procedure, in accordance with Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The events leading to the present case

6. The applicant was born in 1962 in Jendouba, in the Tunisian Republic (“Tunisia”), and lives in Versoix in the Canton of Geneva.

7. The facts of the case, as submitted by the parties, may be summarised as follows.

8. According to the applicant, on 22 April 1992 he was arrested by the Italian police at his place of residence in Italy and taken to the Tunisian Consulate in Genoa, where he was presented with a bill of indictment according to which he represented a threat to Italian State Security. He was then allegedly taken to Tunis by Tunisian agents.

9. The applicant further submits that he was arbitrarily detained and tortured in Tunis in the premises of the Ministry of the Interior, from 24 April to 1 June 1992, on the orders of A.K., the then Minister of the Interior. He submits that he was subjected to the so-called “roast chicken” position throughout his entire detention and deprived of his basic physiological needs, particularly sleep; he was also beaten on the soles of his feet with a baseball bat and struck all over his body with telephone cords.

10. The applicant submits that he suffers from a series of medically attested physical and psychological injuries and problems, and that a causal link between the abuse described and these injuries and problems has been considered plausible.

11. Following the alleged torture in Tunisia in 1992, the applicant fled that country in 1993 and took refuge in Switzerland, where he applied for political asylum in the same year. The applicant has since been living in the Canton of Geneva.

12. On 8 November 1995 the Swiss authorities granted the applicant political asylum.

B. The criminal complaint against the Minister of the Interior in office at the relevant time

13. On 14 February 2001, while A.K. was being treated in a Swiss hospital, the applicant lodged a criminal complaint against him with the Principal Public Prosecutor for the Canton of Geneva (“the Principal Public Prosecutor”), for severe bodily injury, illegal confinement, insults, endangering health, coercion and abuse of authority. The applicant applied to join these proceedings as a civil party seeking damages.

14. On 19 February 2001 the Principal Public Prosecutor made an order discontinuing the proceedings on the grounds that A.K. had left Switzerland and that the police had been unable to arrest him.

C. The civil proceedings against Tunisia and the Minister of the Interior in office at the relevant time

15. According to the applicant, on 22 July 2003 he “[asked] a Tunisian lawyer to represent him with a view to bringing civil proceedings for compensation against [A.K.] and the Tunisian Republic. On 28 July 2003 the lawyer [informed] [the applicant] that this type of action had never been successful and advised him not to lodge such a claim”.

It was allegedly impossible to lodge a civil action of this sort in Tunisia.

16. By a writ dated 8 July 2004, the applicant lodged a claim for damages with the Canton of Geneva Court of First Instance (“the Court of First Instance”) against Tunisia and against A.K. He considered that he should be paid 200,000 Swiss francs (CHF), with 5% interest from 1 June 1992, as compensation for the non-pecuniary damage arising from the acts of torture to which he had allegedly been subjected. The applicant submitted that the conditions for reparation of non-pecuniary damage provided for by Articles 82 et seq. of the Tunisian Code of Obligations and Contracts, applicable under Article 133 al. 2 of the LDIP, were met.

17. On 9 June 2005 a hearing was held before the Court of First Instance; neither of the defendants was in attendance or represented.

18. In a judgment of 15 September 2005, the Court of First Instance declared the claim inadmissible on the ground that it lacked territorial jurisdiction. The relevant part of the judgment reads as follows:

“With regard to an action in tort based on the unlawful acts that were allegedly committed in Tunisia by the defendants, to the claimant’s detriment, the Swiss courts do not have territorial jurisdiction under international law to examine the complaint, given that the defendants are not domiciled or habitually resident in Switzerland, and given also that no illegal act or detrimental outcome occurred in Switzerland, pursuant to sections 2 and 129 [of the Federal Law on Private International Law of 18 December 1987 (LDIP; see paragraph 24 below)].”

Under section 3 of the Federal Law on Private International Law of 18 December 1987 (LDIP; see paragraph 24 below) the Swiss courts did not have jurisdiction by necessity either, given the lack of a sufficient connection between, on the one hand, the case and the facts, and, on the other, Switzerland. In this connection, the Court of First Instance ruled as follows:

“All of the acts for whose after-effects the claimant, a Tunisian national, seeks compensation for non-pecuniary damage were allegedly inflicted on him, as he submits, in Tunisia in 1992, in the premises of the Tunisian Ministry of the Interior, by the Tunisian State and its agents. The sole fact that the claimant applied for and received political asylum in 1995 in Switzerland, where he has since been domiciled, does not amount, in the light of current case-law, to a sufficient connection enabling a “forum of necessity” to be established against the respondents in Switzerland and Geneva.”

19. By a writ dated 16 November 2005, the applicant appealed against that decision before the Court of Justice of the Canton of Geneva (“the Court of Justice”). His appeal was rejected in a judgment of 15 September 2006. After noting that the appellant had shown that he was unable to bring a civil action in Tunisia, the Cantonal Court considered:

“As the outcome of the present appeal depends on the immunity from jurisdiction of the defendant parties, the question of whether there exists a forum of necessity in the appellant’s place of residence can, however, remain undecided.”

20. The Cantonal Court also held that the defendants enjoyed immunity from jurisdiction, since the acts of torture had been performed in the exercise of sovereign authority (iure imperii) and not iure gestionis. Referring to the judgment delivered by the Court in the case of Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001‑XI), it further considered that there had been no violation of the applicant’s right of access to a court.

21. The applicant lodged an ordinary appeal with the Federal Court, dated 20 October 2006, in which he asked the Federal Court to rule that the courts in the Canton of Geneva had territorial jurisdiction and to find that the defendants did not enjoy immunity from jurisdiction. With regard to the jurisdiction of the Swiss courts, he argued that the purpose of the introduction of a forum of necessity in section 3 of the LDIP (see paragraph 24 below) was to avoid denials of justice, especially in cases of political persecution, and that he had provided sufficient evidence that he could not reasonably bring proceedings before a foreign court. As to the immunity from jurisdiction purportedly enjoyed by Tunisia and A.K., the applicant submitted that the exercise of public power did not include the option of committing international crimes such as torture. In this connection, he specified that the very definition of torture in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereafter: “the Convention against Torture”; see paragraphs 26 et seq. below) ruled out any immunity.

22. By a judgment of 22 May 2007, the reasoning of which was notified to the applicant on 7 September 2007, the Federal Court dismissed the appeal. Reiterating the reasoning in the first-instance judgment, the Federal Court considered that the Swiss courts did not in any event have territorial jurisdiction. The relevant passages of the Federal Court’s judgment read as follows:

“3.3 In the absence of an ordinary forum, the problem must be addressed under section 3 of the LDIP, which concerns the forum of necessity... Under the latter provision, where no forum is provided for in Switzerland by the LDIP and where proceedings in another country prove impossible or one cannot reasonable require that they be brought in that country, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection have jurisdiction.

The application of this rule for assigning jurisdiction thus calls for three cumulative conditions to be met: firstly, the Swiss authorities do not have jurisdiction under another provision; secondly, legal proceedings in another country are impossible or cannot reasonably be required; and, thirdly, the case in question has a sufficient connection with Switzerland. In the present case, the first condition is indisputably fulfilled. Fulfilment of the second condition appears more problematic, but in the light of the third condition, which merits more extensive discussion, it is not necessary to elaborate further on this question.

3.4 Section 3 of the LDIP, which must be interpreted restrictively ... represents a safety valve, intended to avoid denials of justice in the event of a negative conflict of jurisdiction.

In this connection, the Federal Council, in its authoritative interpretation of this provision, noted that “there are cases that have such a tenuous connection with Switzerland that it is not appropriate to set in motion the entire judicial system in order to resolve them. However, section 3 lays down an exception to this principle. The Swiss authorities must assume jurisdiction even in cases where the connection with our country is very tenuous, where it is impossible to bring proceedings or to lodge an appeal abroad. It is for the claimant or the appellant to demonstrate this impossibility. Where this evidence has been adduced, jurisdiction reverts to the authority of the locality with which the case has a sufficient connection. Where there are several competing fora in Switzerland, it is the first authority before which an action is brought that has jurisdiction. Clearly, the impossibility of bringing and pursuing proceedings abroad can only be examined in the light of the tangible circumstances and of the possible consequences for the individual concerned in the particular case; it will ultimately be for the court to recognise, or not, its jurisdiction” ....

Although section 3 LDIP may thus seem innately paradoxical insofar as proceedings for which there is no basis for connection with an ordinary forum in Switzerland are, ipso facto, lacking in any particular connection with this country, in such a way that determining a “sufficient connection” may prove challenging, and the aim pursued by the law – to prevent a formal denial of justice – is difficult to achieve, this legal provision has not in practice been without effect; the cantonal courts in particular have recognised its applicability it in the areas of family law, inheritance and proceedings on debt-enforcement and bankruptcy...

Moreover, legal writers have noted that the subsidiary forum must necessarily be recognised in situations of political persecution... In contrast, the case-law and legal writings shed scarcely any light with regard to a civil action for compensation in respect of damage resulting from crimes against humanity, life and physical integrity, committed aboard, by foreign perpetrators.

3.5. ...In the present case, however, the claimant complains of acts of torture that were allegedly committed in Tunisia, by Tunisians resident in Tunisia, against a Tunisian residing in Italy. All of the specific features of the case come back to Tunisia, except for the fact of residence in Italy at the relevant time. The facts of the case thus have no connection with Switzerland, so that the question of whether or not the link with this country is sufficient does not arise. In those circumstances, it is not possible to recognise the jurisdiction of the Swiss courts, short of disregarding the clear text of [section] 3 of the LDIP [see paragraph 24 below]. The fact that the claimant then chose to come to Switzerland cannot change anything, since it is a fact subsequent to the events of the case and, moreover, does not form part of it.

...

4. Since the absence of a sufficient connection between the facts of the case and Switzerland suffices to establish the Swiss courts’ lack of jurisdiction, the appeal must be dismissed, without it being necessary to examine the issue of immunity from jurisdiction.”

23. On 14 May 2007 the Versoix Municipal Council gave its consent to the applicant’s naturalisation, and this was confirmed by the town of Versoix on 25 May 2007 following a favourable opinion from the Canton of Geneva of 6 November 2006. It was subsequently confirmed by the authorisation issued by the Federal Migration Office on 21 May 2007.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE

A. Domestic law

24. The relevant parts of the Federal Act on International Private Law of 18 December 1987 (LDIP; RS 291), as in force at the material time, provide as follows:

Section 2 – In general

“Unless specially provided otherwise in this Act, the Swiss judicial or administrative authorities of the claimant’s place of residence shall have jurisdiction.”

Section 3 – “Forum of necessity”

“Where this Act does not provide for any forum in Switzerland and proceedings abroad prove impossible or it cannot reasonably be required that they be brought, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection shall have jurisdiction.”

Section 129 – Wrongful act

“1. The Swiss courts of the domicile or, in the absence of domicile, those of the defendant’s habitual residence or place of business shall have jurisdiction to examine actions based on a wrongful act.

2. Where the defendant has neither a domicile nor a place of habitual residence or place of business in Switzerland, the action may be brought before the Swiss court of the place in which the act took place or of its outcome.

3. Where several defendants can be found in Switzerland and where the claims are essentially based on the same legal and factual grounds, proceedings may be brought against all of them before the same court having jurisdiction; the court first applied to has exclusive jurisdiction.”

Art. 133 II. Applicable law

“1. Where the perpetrator and the injured party have their habitual residence in the same State, the claims submitted in a respect of a wrongful act shall be governed by the law of that State.

2. Where the perpetrator and the injured party do not have their habitual residence in the same State, those claims shall be governed by the law of the State in which the wrongful act was committed. However, if the result occurred in another State, the law of that State shall be applicable if the perpetrator ought to have foreseen that the result would occur there.

3. Notwithstanding the preceding paragraphs, where a wrongful act violates a legal relationship between the perpetrator and the injured party, the claims submitted in respect of that act shall be governed by the law applicable to that legal relationship.”

25. Articles 41 et seq. of the Swiss Code of Obligations provides for liability for a wrongful act:

Chapter II: Obligations resulting from wrongful acts
Article 41 A. General principles/ I. Conditions for liability

“A person who unlawfully causes damage to another person, whether wilfully or through negligence or imprudence, is required to make reparation.

A person who intentionally causes damage to another person by acting contrary to moral standards is also required to make reparation.”

B. Relevant international law and practice

1. Universal civil jurisdiction

(a) The 1984 United Nations Convention against Torture

26. The Convention against Torture was ratified by Switzerland on 2 December 1986 and entered into force on 26 June 1987. Its Article 1 provides:

Article 1

“1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity ...”

27. Article 5 of that Convention provides for universal jurisdiction for prosecuting and punishing the proscribed acts:

“1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

(c) When the victim is a national of that State if that State considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.”

28. Articles 6 and 7 of that Convention also relate to jurisdiction in criminal matters:

Article 6

“1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts.

3. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.

Article 7

1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.”

29. Article 14 of that Convention provides for the right of victims of torture to obtain reparation:

Article 14

“1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.”

(b) Legal literature

30. Legal commentators do not agree on whether Article 14 of the Convention against Torture has extra-territorial application. In the opinion of certain commentators, this provision does not lay down an obligation to exercise universal jurisdiction, but equally does not prohibit States, in the light of its paragraph 2 and of the object and purpose of the Convention, from providing for such an obligation (see Manfred Nowak/Elizabeth McArthur, The United Nations Convention against Torture: A Commentary, Oxford University Press 2008, p. 494, and Kate Parlett, Universal Civil Jurisdiction for Torture, European Human Rights Law Review, Issue 4 (2007), p. 398).

31. Other writers argue that Article 14 applies to acts of torture committed abroad, given that it provides for no geographical limitation (see Christopher Keith Hall, The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad, European Journal of International Law, vol. 18 no. 5 (Nov. 2007), p. 926; Alexander Orakhelashvili, State Immunity and Hierarchy of Norm: Why the House of Lords Got It Wrong, European Journal of International Law, vol. 18 no. 5 (Nov. 2007), p. 957).

32. Still other commentators consider that no inference can be drawn from Article 14 as to whether a State Party is obliged to make available to victims of torture remedies for acts which were perpetrated outside its jurisdiction (see, for example, Paul David Mora, The Legality of Civil Jurisdiction over Torture under the Universal Principle, German Yearbook of International Law, Vol. 52, 2009, p. 373).

(c) Travaux préparatoires for the Convention against Torture and declarations by States at the point of ratification

33. There is no specific mention in the drafting history of Article 14 of the Convention against Torture of the question of universal civil jurisdiction. During the deliberations in 1981, the working group accepted the proposal by the Netherlands to include, after the expression “act of torture”, the words “committed in any territory under its jurisdiction”. When the convention was adopted, however, this phrase had disappeared, for reasons that are unclear (see Manfred/McArthur, op. cit., p. 457).

34. At the moment of ratifying the Convention against Torture, the United States made the following declaration:

“It is the understanding of the United States that Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of the State Party” (reproduced in Mora, op.cit., p. 375).

35. When submitting the bill for ratification of the Convention against Torture to the Senate, the President of the United States made the following remarks:

“The negotiating history of the Convention indicates that Article 14 requires a State to provide a private right of action for damages only for acts of torture committed in its territory, not for acts of torture occurring abroad. Article 14 was in fact adopted with express reference to ‘the victim of an act of torture committed in any territory under its jurisdiction.’ The italicized wording appears to have been deleted by mistake. This interpretation is confirmed by the absence of discussion of the issue, since the creation of a ‘universal’ right to sue would have been as controversial as was the creation of ‘universal jurisdiction’, if not more so.” (‘Summary and Analysis of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ in Message from the President of the Unites States transmitting the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 20 May 1998 10th Congress, 2nd Session, reproduced in Nowak/McArthur, op. cit., pp. 460-461).

(d) Practice of the United Nations Committee against Torture

36. The United Nations Committee against Torture, the entity entrusted with implementing the Convention against Torture, criticised Canada’s narrow approach in its 4th and 5th periodic reports in 2005. According to one of the members of the Committee (Madame Gaer):

“64. The preparatory work had not been as straightforward as had been described, although perhaps, having been involved in the negotiations, the State party might have additional information to share with the Committee. As the Committee understood it, the phrase ‘in any territory under its jurisdiction’ had been dropped from article 14 without any reason being stated. Canada had indicated that no country had such a provision, but the United States and its Alien Tort Claims Act cases provided the opportunity for victims to bring civil suits. She [Ms Gaer] wondered whether, in view of those considerations, the State party might reconsider the question.” (Summary Record of the second part (public) of the 646th Meeting, Consideration of Reports submitted by States Parties under Article 19 of the Convention (continued), CAT/C/SR.646/Add.1, 13 May 2005).

37. The Committee expressed the following views in its concluding observations concerning Canada:

“[The Committee is concerned by] the absence of effective measures to provide civil compensation to victims of torture in all cases;

[The Committee recommends that] the State party ... review its position under article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture” (Conclusions and recommendations of the Committee against Torture, Canada, CAT/C/CR/34/CAN, 7 July 2005, §§ 4(g) and 5(f)).”

38. In its concluding observations on the 6th periodic report on the same State in 2012, the Committee reiterated its position in the following terms:

“15. The Committee remains concerned at the lack of effective measures to provide redress, including compensation, through civil jurisdiction to all victims of torture, mainly due to the restrictions under provisions of the State Immunity Act (art. 14).

The State party should ensure that all victims of torture are able to access remedy and obtain redress, wherever acts of torture occurred and regardless of the nationality of the perpetrator or victim. In this regard, it should consider amending the State Immunity Act to remove obstacles to redress for all victims of torture.” (CAT/C/CAN/CO/6, 25 June 2012 § 15).

39. In 2012 the Committee issued General Comment no. 3 (2012) on the Implementation of article 14 by States parties (CAT/C.GC/3, 13 December 2012). In it, the Committee reiterated its previous stand, asserting that Article 14 does not contain any geographical limitation:

“22. Under the Convention, States parties are required to prosecute or extradite alleged perpetrators of torture when they are found in any territory under its jurisdiction, and to adopt the necessary legislation to make this possible. The Committee considers that the application of article 14 is not limited to victims who were harmed in the territory of the State party or by or against nationals of the State party. The Committee has commended the efforts of States parties for providing civil remedies for victims who were subjected to torture or ill-treatment outside their territory. This is particularly important when a victim is unable to exercise the rights guaranteed under article 14 in the territory where the violation took place. Indeed, article 14 requires States parties to ensure that all victims of torture and ill-treatment are able to access remedy and obtain redress.”

40. With regard to the practical and inherent legal obstacles to the right to redress for acts of torture, the Committee stated:

“38. States parties to the Convention have an obligation to ensure that the right to redress is effective. Specific obstacles that impede the enjoyment of the right to redress and prevent effective implementation of article 14 include, but are not limited to: inadequate national legislation, discrimination with regard to accessing complaints and investigation mechanisms and procedures for remedy and redress; inadequate measures for securing the custody of alleged perpetrators, State secrecy laws, evidential burdens and procedural requirements that interfere with the determination of the right to redress; statutes of limitations, amnesties and immunities; the failure to provide sufficient legal aid and protection measures for victims and witnesses; as well as the associated stigma, and the physical, psychological and other related effects of torture and ill-treatment. In addition, the failure of a State party to execute judgements providing reparative measures for a victim of torture, handed down by national, international or regional courts, constitutes a significant impediment to the right to redress. States parties should develop coordinated mechanisms to enable victims to execute judgements across State lines, including recognizing the validity of court orders from other States parties and assisting in locating the assets of perpetrators.”

41. With more specific regard to the question of immunities, the Committee held:

“42. Similarly, granting immunity, in violation of international law, to any State or its agents or to non-State actors for torture or ill-treatment, is in direct conflict with the obligation of providing redress to victims. When impunity is allowed by law or exists de facto, it bars victims from seeking full redress as it allows the violators to go unpunished and denies victims full assurance of their rights under article 14. The Committee affirms that under no circumstances may arguments of national security be used to deny redress for victims.”

42. The question of universal jurisdiction in relation to Article 14 has been raised in several individual communications before the Committee against Torture. In the case of Marcos Roitmann Rosenmann v. Spain (no. 176/2000), the complainant argued that the way in which an extradition request against General Pinochet, then resident in the United Kingdom, had been dealt with was in breach of Article 14 of the Convention against Torture. In a decision of 30 April 2002, the Committee declared this complaint inadmissible for the following reasons:

“6.6 With respect to (c) [the objection based on the Committee’s lack of jurisdiction ratione personae], the Committee notes that the complainant’s claims with regard to torture committed by Chilean authorities are ratione personae justiciable in Chile and in other States in whose territory General Pinochet may be found. However, to the extent that General Pinochet was not in Spain at the time of the submission of the communication, the Committee would consider that articles 13 and 14 of the Convention invoked by the complainant do not apply ratione personae to Spain. In particular, his ‘right to complain to, and to have his case promptly and impartially examined by, [the] competent authorities’, and his claim to compensation would be justiciable vis-à-vis the State responsible for the acts of torture, i.e. Chile, not Spain.”

43. In the case of Z. v. Australia (no. 511/2012, decision of 26 November 2014), the Committee against Torture was required to examine an individual communication lodged by an Australian citizen of Chinese origin who argued that she had been tortured by the police during a visit to the People’s Republic of China (hereafter “China”) in the period 1999-2000. She had attempted to bring a civil action for compensation before the Australian courts against, inter alia, the former President of China and a member of that country’s communist party. The action had been dismissed by the Australian courts on the grounds that members of the government of a foreign State enjoyed immunity. The Committee, called on to examine the case, reiterated its approach concerning the geographical application of Article 14 of the Convention against Torture, but dismissed the case for the same reasons as the domestic courts (footnotes omitted):

“6.3 The Committee notes the State party’s argument that the communication is inadmissible ratione personae under article 22 of the Convention because the communication requires the Committee to consider whether China itself has violated article 14 by allegedly not providing an effective remedy to the complainant, and China has not made the declaration under article 22 of the Convention. The Committee also notes the complainant’s assertion that article 14 applies irrespective of the places of the acts of torture; and that, because the Australian courts have not declined jurisdiction on the ground of forum non conveniens, the State party is required to afford an enforceable right to fair and adequate compensation. The Committee recalls its general comment No. 3 (2012) on the implementation of article 14 by States parties, in which it considers that ‘the application of article 14 is not limited to victims who were harmed in the territory of the State party or by or against nationals of the State party’ and that ‘article 14 requires States parties to ensure that all victims of torture and ill-treatment are able to access remedy and obtain redress’. However, the Committee observes that, in the specific circumstances of this case, the State party is unable to establish jurisdiction over officials of another State for alleged acts committed outside the State party’s territory. Accordingly, the Committee considers that, in the case under review, the complainant’s claim to redress and compensation is inadmissible.”

2. The specific nature of torture and other crimes in international law

44. In its judgment of 20 July 2012 on Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ Reports 2012, p. 422, the International Court of Justice (ICJ) reiterated the specific nature of the crime of torture in international law in the light of the Convention against Torture:

“68. As stated in its Preamble, the object and purpose of the Convention is ‘to make more effective the struggle against torture . . . throughout the world’. The States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred. All the other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. All the States parties “have a legal interest” in the protection of the rights involved (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33). These obligations may be defined as ‘obligations erga omnes partes’ in the sense that each State party has an interest in compliance with them in any given case. In this respect, the relevant provisions of the Convention against Torture are similar to those of the Convention on the Prevention and Punishment of the Crime of Genocide, with regard to which the Court observed that:

“In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention.” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23.)

...

99. In the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens).”

45. In the case of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), [Jurisdiction and Admissibility, judgment of 3 February 2006, I.C.J. Reports 2006, p. 6], the ICJ was required to examine whether it had jurisdiction to rule on a dispute which concerned a norm of jus cogens, namely the prohibition of genocide, in spite of a reservation, excluding its jurisdiction, introduced by Rwanda to the treaty providing for disputes to be settled by the ICJ. It concluded that it did not have jurisdiction, ruling as follows:

“64. The Court will begin by reaffirming that ‘the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation’ and that a consequence of that conception is ‘the universal character both of the condemnation of genocide and of the co-operation required ‘in order to liberate mankind from such an odious scourge’ (Preamble to the Convention)’ (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23). It follows that “the rights and obligations enshrined by the Convention are rights and obligations erga omnes” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 616, para. 31).

The Court observes, however, as it has already had occasion to emphasize, that ‘the erga omnes character of a norm and the rule of consent to jurisdiction are two different things’ (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29), and that the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute.

The same applies to the relationship between peremptory norms of general international law (jus cogens) and the establishment of the Court’s jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court’s Statute that jurisdiction is always based on the consent of the parties.

...

69. In so far as the DRC contended further that Rwanda’s reservation is in conflict with a peremptory norm of general international law, it suffices for the Court to note that no such norm presently exists requiring a State to consent to the jurisdiction of the Court in order to settle a dispute relating to the Genocide Convention. Rwanda’s reservation cannot therefore, on such grounds, be regarded as lacking legal effect.

70. The Court concludes from the foregoing that, having regard to Rwanda’s reservation to Article IX of the Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court in the present case.”

3. The 1951 United Nations Convention relating to the Status of Refugees

46. The United Nations Convention relating to the Status of Refugees of 28 July 1951 entered into force on 22 April 1954. It was ratified by Switzerland on 21 January 1955 and entered into force in respect of Switzerland on 21 April 1955.

47. The relevant provision for the present case reads as follows:

Article 16 – Access to courts

“1. A refugee shall have free access to the courts of law on the territory of all Contracting States. ...”

C. Comparative law

48. As the present case raises complex legal issues, the Court considered it appropriate to conduct a comparative survey with regard to two sets of questions, namely universal civil jurisdiction for acts of torture on the one hand, and the principle of the forum of necessity on the other. The survey takes into account the domestic law and practice of twenty-six Contracting States (Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, the Czech Republic, Estonia, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta, Moldova, Poland, Portugal, Romania, Russia, Serbia, Slovenia, Spain, Turkey, Ukraine and the United Kingdom), and also that of two countries which are not member States of the Council of Europe (Canada and the United States).

1. Universal civil jurisdiction

(a) Universal civil jurisdiction stricto sensu

49. Analysis of the relevant elements of the domestic law in the States included in the survey clearly shows that, at the present time, none of the Contracting States studied provides for universal international jurisdiction before the civil courts, whether for acts or torture or for other criminal offences, although some legal opinion does seem to recommend this approach.

50. In Italy there is no provision of positive law or clear case-law conferring universal jurisdiction on the civil courts in respect of claims for damages in cases of torture and crimes against humanity. However, a part of the Italian legal opinion considers that certain decisions by the Italian courts are moving in the direction of recognising such jurisdiction. They refer to the Court of Cassation’s judgment in the Ferrini case (6 November 2003, 11 March 2004), which concerned Germany’s responsibility for the claimant’s arrest in Italy and his deportation to Germany during the Second World War, and also to a series of subsequent judgments against Germany delivered by the Italian courts during the period from 2004 to 2008. One of those judgments authorised enforcement in Italy of a judgment by a Greek court ordering Germany to compensate the victims of the Distomo (Greece) massacre of 10 June 1944. These Italian judgments were at the origin of the ICJ’s decision of 3 February 2012 in the case Jurisdictional Immunities of the State (Germany v. Italy, Greece (intervening)), Reports ICJ, 2012, p. 99), which found that Italy had violated the customary international law guaranteeing jurisdictional immunity to States. The fact that Germany had been accused of a violation of jus cogens was not considered decisive by the ICJ.

51. In the United Kingdom, in the case of Jones v. Saudi Arabia ([2006] UKHL 26), the House of Lords held that Article 14 of the Convention against Torture did not provide for universal civil jurisdiction, and that there was no evidence that States had recognised an international-law obligation to exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of international law. Equally, there was no consensus of judicial and learned opinion that they should. The House of Lords distinguished the Jones case from another case previously examined by it, namely Pinochet (no. 3), concerning the former Chilean dictator, on the ground, specifically, that the Pinochet case concerned criminal proceedings which fell squarely within the universal jurisdiction mandated by the Convention against Torture (see §§ 25-32 of the judgment). The House of Lords thus found no reason to set aside the applicability of the rule laying down absolute State immunity for acts committed by their representatives acting in their official capacity. That case subsequently came before this Court, which held that there had been no violation of Article 6 § 1 of the Convention (see Jones and Others v. the United Kingdom, nos. 34356/06 and 40525/06, 14 January 2014).

52. Turning to the States which are not members of the Council of Europe, it is appropriate to note that the Canadian courts have universal jurisdiction to examine civil claims, but solely in connection with terrorist acts, in accordance with the 2012 Justice for Victims of Terrorism Act. However, this jurisdiction is subject to the condition that the victim is a Canadian citizen or is a permanent resident of Canada, or that the civil action has a “real and substantial connection to Canada”. In contrast, universal jurisdiction does not apply to actions in respect of damage sustained as a result of other violations of international law, including torture (except where it is shown that it took place in the context of acts of terrorism). In the case of Bouzari v. Islamic Republic of Iran ([2004] OJ No. 2800 Docket No. 38295), the Ontario Court of Appeal held that Article 14 of the Convention against Torture did not create an obligation on Canada to ensure civil-law remedies for acts of torture committed outside its territory. In that case, the plaintiff, a Canadian of Iranian origin, brought a claim for compensation before the Canadian courts on the grounds that he had been tortured by representatives of the Iranian State. The Appeal Court endorsed the lower court’s finding that there was no real and substantial connection between the Province of Ontario and the contested proceedings. It concluded that a sufficiently widespread international practice did not exist among the States to justify recognising the civil jurisdiction of the Canadian courts in the situation before it.

53. Of all the States included in the present survey, only the United States provides, at federal level, for universal jurisdiction in respect of civil claims for compensation submitted in relation to torture, on the basis of two federal laws, namely the Alien Tort Statute of 1789 and the Torture Victim Protection Act of 1991. The first ascribes jurisdiction to the federal courts for “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”.

In other words, it is not necessary that the impugned act was committed in the territory of the United States or by a national of that State. This law had never really been put into practice until the leading case of Filártiga v. Peña-Irala before the Second Circuit Court of Appeals in 1980 [630 F.2d 876 (2d Cir. 1980)]. In that case, the court accepted the complaint by the parents of a victim who had been tortured to death in Paraguay; the complaint was brought against the perpetrator of the impugned acts, who was then resident in the United States. The court found that federal jurisdiction could be exercised “whenever an alleged torturer is found and served with process by an alien within our borders” (ibid., at 878).

The Torture Victim Protection Act provides as follows: “An individual who, under actual or apparent authority, or color of law, of any foreign nation subjects an individual to torture shall, in a civil action, be liable for damages to that individual...” (section 2 (a) § 1).

It is clear from these two laws that cases can, a priori, be submitted to the courts of the United States without there being a jurisdictional link with that country. For a court to be entitled to take action on a case, the person against whom the claim is brought must nonetheless fall within the jurisdiction of the United States at the time the action is lodged. Furthermore, even where the court’s jurisdiction is accepted, there exist other legal obstacles. In reality, it seems that about 80% of the cases brought under those two Acts have been dismissed on various grounds, such as the “act of State” doctrine, sovereign immunity or the forum non conveniens doctrine (see Nowak/McArthur, op.cit., p. 494).

Moreover, limitations have been placed on the scope of the Alien Tort Statute in recent years. In the case of Kiobel v. Royal Dutch Petroleum Co., Nigerian nationals who had obtained refugee status in the United States applied to the American courts under the Alien Tort Statute, alleging that Dutch, British and Nigerian companies had aided and abetted violations of international law committed by the Nigerian Government [Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013)]. On 17 April 2013 the Supreme Court ruled as follows:

“We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. ‘[T]here is no clear indication of extraterritoriality here,’ Morrison, 561 U. S., at ___ (slip op., at 16), and petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred.

IV

On these facts, all the relevant conduct took place out­side the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.”

(b) The possibility of joining criminal proceedings as a civil party on the basis of the principle of universal criminal jurisdiction

54. The question of the civil courts’ universal jurisdiction must be distinguished from the possibility of applying to join the proceedings as a civil party in criminal proceedings brought before the criminal courts on the basis of the principle of universal jurisdiction in criminal matters.

55. In Belgium, for example, the universal jurisdiction of the national criminal courts is governed by Article 12bis of the preliminary part of the Code of Criminal Procedure, as amended by the Law of 5 August 2003. This article enables the Belgian criminal courts to extend their jurisdiction to include offences that do not have a connection with the national territory, either in application of a rule of international law – as provided by the Convention against Torture –, or in application of a rule of customary international law as regards the crime of genocide and crimes against humanity. A victim of an offence who relies on the universal jurisdiction of the Belgian courts cannot apply to join the proceedings as a civil party ab initio, since proceedings are instituted solely on a decision by the Federal Prosecutor. However, if the latter decides to institute criminal proceedings, the victim of acts of torture or other crimes against humanity can then join the proceedings “by lodging a civil-party application” in order to obtain redress for the damage sustained (Article 67 of the Code of Criminal Procedure).

56. Equally, the Judicature Act in Spain provides for the universal jurisdiction of the Spanish courts (in the criminal field) for certain crimes, including crimes against humanity and acts of torture, committed in other States by Spanish citizens or by non-nationals, subject to certain conditions. In the context of criminal proceedings, the victims of crimes may join the proceedings as a (prosecutorial) civil party and request redress in respect of the damage sustained (Article 112 of the Code of Criminal Procedure).

57. In Ireland the legislation also recognises universal criminal jurisdiction in respect of torture and crimes against humanity, and the general national scheme of compensation for victims of crime applies in principle in cases examined by the Irish courts on that basis; however, to date there is no practical example of such compensation being awarded by the Criminal Injuries Compensation Tribunal.

2. The forum of necessity

(a) Geographical extent

58. The rules governing international civil jurisdiction in seventeen of the European States in the survey (Azerbaijan, Bosnia and Herzegovina, Bulgaria, the Czech Republic, Greece, Ireland, Italy, Latvia, Malta, Moldova, Russia, Serbia, Slovenia, Spain, Turkey, Ukraine and the United Kingdom) do not recognise the “forum of necessity”. In this connection, it should be noted that Ireland and the United Kingdom, as countries governed by Anglo-Saxon law (the common law), have another rule which applies in similar situations (although working in the opposite direction), namely the forum non conveniens (cf. infra). This is also the case in respect of the United States.

59. Moreover, the rules governing international civil jurisdiction in nine European States included in the survey (Austria, Belgium, Estonia, France, Germany, Luxembourg, Poland, Portugal and Romania) either recognise explicitly the forum of necessity or contain a principle bearing another name but entailing very similar, if not identical, consequences. In France there exists a ground for granting jurisdiction to the national courts in the event of “a risk of a denial of justice” (denial of justice is prohibited by Article 4 of the Civil Code and Article 434-7-15 of the Criminal Code). This basis for jurisdiction has been accepted only very exceptionally, but it is in this context that the issue of whether there exists jurisdiction to examine civil claims lodged by victims of particularly serious criminal offences (such as war crimes, torture, false imprisonment, or even serious damage to human health and the environment arising from the activities of multinational companies, etc.) is addressed.

60. Among the non-member States of the Council of Europe, the “forum of necessity” has been recognised by the Civil Code of Quebec (in Canada), but the domestic case-law has recently introduced it into the domestic law of certain other Canadian provinces. In Quebec, the forum of necessity is provided for by Article 3136 of the Civil Code of Quebec, which provides: “Even though a Quebec authority has no jurisdiction to hear a dispute, it may nevertheless hear it provided the dispute has a sufficient connection with Quebec, if proceedings abroad prove impossible or the institution of proceedings abroad cannot reasonably be required” (wording in force since 1991).

In a judgment of 2 February 2010, delivered in the case of Van Breda at al. v. Village Resorts Limited, the Court of Appeal for Ontario recognised, for the first time, the possibility of the forum of necessity in an Anglophone province. In that case, which concerned injuries sustained abroad, the Court of Appeal held that “[w]here there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction”.

(b) Substantive scope

61. With the exception of Germany, the “forum of necessity” is applied irrespective of the nature of the dispute in all the countries surveyed which recognise it.

62. In Belgium, for example, the concept of a “forum of necessity” was introduced by the Law of 16 July 2004 on the Code of Private International Law. Article 11 of that Code provides: “Other provisions in this Law notwithstanding, Belgian courts have, exceptionally, jurisdiction for cases which have close links with Belgium, where bringing proceedings abroad proves to be impossible or where it cannot be reasonably requested that the claim be brought abroad.” The substantive scope of this article includes all of the civil and commercial matters covered by the Code, whether these are issues governed by the rules of general jurisdiction or issues governed by the rules of special jurisdiction, such as non-contractual obligations.

63. In Luxembourg, the case-law has accepted that, beyond the rules of ordinary jurisdiction, the Luxembourg courts “are accessible to foreign nationals who are not domiciled or resident in the country, so long as they no other available means of protecting their rights” (Luxembourg District Court, 30 June 1961, Pas., XVIII, 372).

64. In Poland, the “forum of necessity” was established for the first time in the case-law of the Supreme Court in cases concerning the right of succession to moveable property left in Poland by foreign nationals. It was subsequently codified by Article 1099-1 § 1 of the Code of Civil Procedure, which is applicable in all civil cases without distinction on the basis of their substantive content or their object. Lastly, the legislation in Estonia, Portugal and Romania also provides for no distinction based on the nature or content of the dispute.

(c) Conditions for application

65. With regard to the conditions for application of the “forum of necessity”, the comparative survey carried out by the Court has shown that, in all the States which recognise a “forum of necessity”, its application is always subject to two cumulative conditions, namely, on the one hand, the de facto or de jure impossibility of bringing the dispute before the courts of another State and, on the other, the existence of at least a certain proximity (or a certain connection) between the dispute and the State of the forum applied to.

66. With regard to the second condition, it appears that the elements of proximity which create a connection are as follows.

67. In Germany, they are, inter alia, nationality, habitual residence, the possibility that the judgment will be executed, and the applicability of German law. In addition, the elements amounting to a connection that are accepted by the courts may vary depending on the nature of the dispute. In cases of divorce, nationality or habitual residence will suffice; in contrast, in a dispute over a civil tort, German nationality will not be enough, while habitual residence or the possibility that the judgment can be executed in Germany will suffice.

68. In Austria, the relevant elements are nationality, legal residence, habitual residence, or the place in which an organisation has its headquarters.

69. In Belgium, Article 11 of the Code of Private International Law requires that the case has “close connections with Belgium”. This requirement will be met if the claimant has Belgian nationality or if his or her domicile or habitual residence is in Belgium. Legal writings indicate that any other element of the case may be put forward to establish a connection with Belgium, such as for example localisation of assets in Belgian territory.

70. In Estonia, under Article 72 of the Code of Criminal Procedure, it is a claimant’s Estonian nationality, the fact that he or she is resident in Estonia, or the fact that “the case [has] close links with Estonia for another reason” which are considered as sufficient evidence of a connection.

71. In France, the case-law requires that the dispute must be connected to France in some way (to be determined by the court).

72. In Poland, Article 1099-1 § 1 of the Code of Civil Procedure provides that the case must have “a sufficient connection with the Polish legal system”. Legal writings provide some non-exhaustive examples of such a “sufficient connection”; for example, the parties’ permanent or temporary residence is in Poland, the subject-matter of the dispute is in Poland, the judgment can be executed in Poland, the claimant has a legal interest in obtaining judicial protection in Poland, etc. At the same time, legal opinion has emphasised that a “sufficient connection” implies something stronger than a mere connection.

73. In Portugal, there must be a “sufficiently strong” link between the dispute and the Portuguese legal system. This criterion, which has been determined and specified by the case-law, may be personal in nature (Portuguese nationality or habitual residence in Portugal) or property-based (the fact that the movable or immovable property in question is located in Portugal).

74. In Romania Article 1069 of the Code of Civil Procedure states that the court “of the locality with which the dispute has a sufficient link” has jurisdiction. This criterion is analysed in relation to the facts in a given case: for example, the link may be citizenship of or residence in Romania.

75. In Canada application of the proximity requirement varies depending on the province. Article 3136 of the Civil Code of Quebec requires that “the dispute has a sufficient connection with Quebec”. Other provinces do not require any connection. Indeed, the territory of Yukon and the provinces of Nova Scotia and British Columbia have adopted, with a few minor amendments, the 1994 Court Jurisdiction and Proceedings Transfer Uniform Act, section 6 of which provides for a “forum of necessity” subject to the sole condition that it is impossible to bring proceedings before courts outside the province in question.

The Canadian courts have to date applied the principle of a “forum of necessity” in only two civil cases. Only one of them, Bouzari v. Bahremani ([2013], ONSC 6337), concerned allegations of torture committed abroad. The claimant in that case was the same as in the Bouzari v. Islamic Republic of Iran case (see paragraph 52 above). The respondent was a private individual and, accordingly, State immunity did not apply. The Ontario first-instance court established that Ontario was indeed the “forum of necessity” in accordance with Ontario’s case-law, since there was no reasonable basis on which the claimant could have brought proceedings in the State in which the torture had allegedly taken place (that is, in Iran). The judge stated that the burden of proof had shifted to the defender, and it was for him to show that there existed a more appropriate forum to examine the claim. In 2015, however, the Ontario Court of Appeal set aside that decision, holding that England would be better placed to examine the case, in line with the Anglo-Saxon principle of the forum non conveniens (see below).

(d)  The forum non conveniens

76. In those States with an Anglo-Saxon legal system (Ireland, the United Kingdom, and the United States), the principle of a “forum of necessity” does not exist. Their private international-law systems contain another principle, that of forum non conveniens, which is in a way the exact opposite of the “forum of necessity”. Under that principle, a national court can decline jurisdiction on the grounds that a court with equal jurisdiction, situated in another State, would, objectively speaking, be a more appropriate forum for examining a dispute, that is, before which the dispute could be suitably settled, for the interests of all parties and the ends of justice (see the 1986 House of Lords judgment in Spiliada Maritime Corporation/Cansulex Ltd, 1987, AC 460, esp. p. 476). In particular, an English court which decides to decline jurisdiction in application of a forum non conveniens objection stays the action so that these same proceedings, which are thus provisionally suspended, can be resumed if, among other scenarios, it proves that the foreign forum does not have jurisdiction to examine the dispute or that the claimant does not have access to effective justice before that forum.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

77. The applicant complained about the fact that the Swiss courts had declined jurisdiction to deal with the merits of his claim for damages against Tunisia and A.K., who were, according to the applicant, responsible for the acts of torture inflicted on him in Tunisia. In consequence, the applicant considered that there had been a violation of his right of access to a court within the meaning of Article 6 § 1 of the Convention, which provides, in so far as relevant:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

78. The Government contested that argument.

A. Admissibility

1. Submissions by the parties

(a) The Government

79. The Government argued that the application was inadmissible, for the following reasons.

80. The Government stated at the outset that it would make no comment on the question of immunity from jurisdiction, which had been neither examined nor accepted by the Federal Court.

81. With regard to the issue of the Swiss courts’ lack of jurisdiction, and referring primarily to § 47 of the Al-Adsani v. the United Kingdom judgment ([GC], no. 35763/97, ECHR 2001-XI), the Government submitted, in essence, that Article 6 § 1 of the Convention could not create, by way of interpretation, a substantive civil right which had no legal basis in the State concerned. In this connection, the Government emphasised that Swiss law did not contain a right to bring civil proceedings on account of allegations of acts of torture irrespective of a case’s connection with the Swiss court. The Government submitted that, in consequence, Article 6 § 1 of the Convention was not applicable in the present case.

82. The Government invited the Court, as their primary submission, to declare the application inadmissible as being incompatible with the provisions of the Convention, in accordance with Article 35 §§ 3 and 4 of the Convention; in the alternative, they submitted that the application should be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

(b) The applicant

83. The applicant, for his part, asked the Court to dismiss the objection that the application was incompatible with the provisions of the Convention, and also the objection that it was manifestly ill-founded.

84. The applicant considered that Article 6 § 1 of the Convention was applicable: there did in fact exist a civil right, namely an action for tortious liability in respect of damage caused to the person, and jurisdiction had been given to the Swiss courts by section 3 of the LDIP (see paragraph 24 above), even in cases in which the connection with Switzerland was very tenuous.

2. The Court’s assessment

85. In the present case, the applicant had based his claim on Article 82 et seq. of the Tunisian Code of Obligations and Contracts, which he considered applicable under section 133 al. 2 of the LDIP. The Court further observes that similar provisions providing for civil liability in respect of an unlawful act, applicable, inter alia, to acts adversely affecting a person’s physical or moral integrity, exist in Swiss law, particularly in Articles 41 et seq. of the Code of Obligations (see paragraph 25 above). The restricted interpretation given by the Federal Court to the concept of the forum of necessity does not represent an obstacle to the application of Article 6 § 1 to the present case (see, mutatis mutandis, Al-Adsani, cited above, §§ 46‑49, and Jones and Others v. the United Kingdom, nos. 34356/06 and 40525/06, 14 January 2014, § 164). As this provision is therefore applicable in the present case, the objection that the application is incompatible with the provisions of the Convention must be rejected.

86. Furthermore, the Court notes that Government have presented certain arguments from the perspective of the admissibility of the present case. However, the Court considers it more appropriate to address these in the Merits part of its judgment.

87. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

(a) The applicant

88. Citing Article 14 of the Convention against Torture (see paragraph 29 above) and Article 16 of the United Nations Convention relating to the Status of Refugees (see paragraph 47 above), the applicant submitted that the Federal Court’s restrictive application of section 3 of the LDIP had entailed a denial of justice in respect of the alleged acts of torture and a violation of Article 6 § 1 of the Convention. The entire edifice of international law was currently moving towards putting an end to the impunity linked to so-called “international” crimes. Furthermore, it was possible in Switzerland to bring a civil action in the context of criminal proceedings. In addition, the applicant complained about the fact that the Swiss courts, located in the State in which the applicant had been resident since 1993, had refused to accept their jurisdictional competence, while simultaneously acknowledging that it was impossible to bring a civil action before the courts of a third country.

89. The applicant submitted that the Federal Court had deliberately chosen to interpret section 3 of the LDIP “restrictively”, although nothing obliged it to do so. He pointed out that, according to a dispatch by the Federal Council, it had not been foreseen that section 3 of the LDIP be applied in a restrictive manner, quite the contrary: “... the Swiss authorities must assume jurisdiction even in cases where the connection with our country is very tenuous, where it is impossible bring proceedings or pursue a remedy abroad” (Dispatch concerning a federal law on Private International Law, Federal Gazette (FF), 1983 I 290). The applicant considered that the fact of applying this provision restrictively and of failing to use it in respect of reparation for damage resulting from crimes against humanity committed abroad by foreign perpetrators, but solely in respect of family law, inheritance and proceedings for debt-enforcement and bankruptcy, did not correspond to a legitimate aim in accordance with the Court’s case-law on Article 6 § 1.

90. Moreover, contrary to what the Government suggested, the applicant was not arguing that access to a court be granted “in every imaginable case”; rather, he submitted that in respect of torture, where the case had certain connections with Switzerland, restricting access to a court did not correspond to a legitimate aim. The Federal Court’s judgment, even supposing that it pursued a legitimate aim – which the Government seemed to limit to the effective administration of justice – was disproportionate in the present case, having regard to the right of a victim of acts of torture to obtain the compensation to which he was entitled under Tunisian and international law.

91. As to the question of immunity, the applicant considered that it could be ignored, since the Federal Court had validated, at least implicitly, the Court of Justice’s argument with regard to the defendants’ immunity, although that argument ought to have been discarded since it was in breach of Article 6 § 1 of the Convention.

92. In this connection, the substance of the applicant’s allegations was that the prohibition of torture had achieved the status of a peremptory rule of international law, so that no immunity could be relied upon to protect the perpetrators of crimes of torture, and the criminal or civil nature of the domestic proceedings was immaterial, especially since Tunisia and A.K. had not appeared before the Swiss courts and had not therefore raised the objection of immunity. Moreover, by making no distinction between the immunities of States and personal immunities in separate findings, the Federal Court and the Court of Justice had breached international law.

93. Referring in particular to Article 14 of the Convention against Torture (see paragraph 29 above), the applicant was also of the view that the prohibition on torture implied positive obligations on the States, including the possibility for the victim to obtain “appropriate redress”.

94. Lastly, according to the applicant, international law had developed since 2001 – the year in which the Al-Adsani judgment was delivered – so that State immunity had to give way in torture cases.

(b) The Government

95. The Government submitted that, were the Court to declare the present application admissible, the Federal Court’s application of section 3 of the LDIP (see paragraph 24 above) had pursued a legitimate aim and was proportionate to that aim.

96. The Government thus acknowledged that the Swiss legislature had attempted to guarantee the widest possible access to justice. However, they alleged, inter alia, that “universal civil jurisdiction” would create unmanageable difficulties for the courts, arising from the excessive workload, the administration of evidence and the enforcement of judicial decisions. The Government added that section 3 of the LDIP (see paragraph 24 above) did not open the door to establishing a forum on the grounds of having obtained political asylum in Switzerland for events prior to the granting of asylum and which had no connection with the country. Moreover, the applicant had not shown that it had been impossible at the relevant time to bring proceedings before the Italian courts. The Government also pointed out that the applicant could have applied to join, as a civil party, the criminal proceedings initiated by him in Switzerland, which had been discontinued on 19 February 2001.

97. In addition, referring in particular to Article 14 of the Convention against Torture (see paragraph 29 above), to the practice of the European States and to Article 16 of the UN Convention relating to the Status of Refugees (see paragraph 47 above), the Government submitted that no obligation falling to Switzerland under international law had been compromised.

(c) The third-party interveners

98. In their joint written pleadings, the third-party interveners submitted firstly, in essence, that the victims of acts of torture were entitled under international law to an effective remedy and to redress, without explicit territorial limitations. On this point, the third-party interveners referred to the jus cogens nature of the prohibition on torture and to Article 6 § 1 of the Convention, which was to be interpreted in accordance with international law, especially the Convention against Torture, in order to avoid a denial of justice in respect of the victim and impunity in respect of the torturer.

99. As to the issue of jurisdiction, the third-party interveners submitted, in substance, that a limitation on the right of access to a court of a resident of a State Party to the Convention in cases concerning an allegation of torture, where no other remedy aboard could reasonably be used, did not pursue a legitimate aim and was disproportionate. The third-party interveners submitted that account had to be had, in particular, to the growing European consensus on “emergency” jurisdiction, according to which the claimants’ residence was a sufficient connection. Furthermore, according to the third-party interveners, there were positive obligations on States to take measures guaranteeing practical and effective rights where the presumed perpetrator had been temporarily present in the jurisdiction but had escaped criminal prosecution.

100. Lastly, immunity ratione materiae (functional immunity) for a former official representative did not apply in the event of an allegation of torture, according to the third-party interveners, who referred in particular to the observations submitted by the Redress Trust, in collaboration with other organisations, in the case of Jones and Others v. the United Kingdom (cited above).

2. The Court’s assessment

(a) The principles established in the Court’s case-law

101. The Court reiterates that the right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see, among many other examples, Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002‑IX, and Eşim v. Turkey, no. 59601/09, § 18, 17 September 2013). It reaffirms that everyone has the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. In this way, Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one particular aspect (see, among many other authorities, Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Howald Moor and Others v. Switzerland, nos. 52067/10 and 41072/11, § 70, 11 March 2014).

102. The Court further notes its case-law to the effect that the right to a court is not absolute; it is subject to limitations permitted by implication, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see Yabansu and Others v. Turkey, no. 43903/09, § 58, 12 November 2013, and Howald Moor and Others, cited above, § 71).

103. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired (see Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012, and Howald Moor and Others, cited above, § 71).

104. The Court further reiterates that such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many other examples, Stubbings and Others v. United Kingdom, 22 October 1996, § 50, Reports of Judgments and Decisions 1996‑IV; Stagno v. Belgium, no. 1062/07, § 25, 7 July 2009; and Howald Moor and Others, cited above, § 71).

105. Lastly, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 1969, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see, for example, Golder, cited above, § 29; Al‑Adsani, cited above, § 55; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131, ECHR 2010; and Nada v. Switzerland [GC], no. 10593/08, § 169, ECHR 2012).

(b) Application of these principles in the present case

i. The Swiss courts’ refusal to assume their jurisdiction arising from the “forum of necessity”

106. The Court notes at the outset that the Federal Court, in dismissing the appeal on the grounds that jurisdiction on the basis of locality did not exist, left open the question of immunity from jurisdiction (see paragraph 22 above). Nor need this latter question be decided by the Court. It must, however, examine whether the Swiss courts’ decision that they did not have jurisdiction is compatible with the applicant’s right of access to a court under Article 6 § 1 of the Convention.

107. With regard to the aim pursued by the restriction on the right of access to a court, the Court considers that the refusal to entertain the applicant’s civil action was aimed at ensuring the proper administration of justice and the effectiveness of domestic judicial decisions. It shares the Government’s view that universal jurisdiction, in a civil context, would risk creating considerable practical difficulties for the courts, particularly regarding the administration of evidence and the enforcement of such judicial decisions. Nor does the Court rule out that the acceptance of universal jurisdiction could give rise to undesirable interference by one country in the domestic affairs of another.

Thus, the Court concludes that the refusal by the Swiss courts to examine the merits of the applicant’s action pursued legitimate aims within the meaning of the above-cited case-law.

108. The second question to be examined by the Court is whether there was a reasonable relationship of proportionality between the means employed and the aim pursued. In other words, and having regard to the specific nature of the present case, it must address the question, which has been raised before it on the basis of the principle of the “forum of necessity”, whether the Federal Court’s refusal to accept universal jurisdiction did not infringe the very essence of the applicant’s right of access to a court.

109. With regard to the tangible application of the rule on the “forum of necessity” to the present case, the Court reiterates that it is for the national authorities, particularly the courts, to interpret domestic law (see, among many other authorities, Kruslin v. France, 24 April 1990, § 29, Series A no. 176‑A; Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998‑II; and Nusret Kaya and Others v. Turkey, nos. 43750/06, 43752/06, 32054/08, 37753/08 and 60915/08, § 38, ECHR 2014 (extracts)). The Court cannot therefore call into question the assessment by the domestic authorities regarding alleged errors of law, save where these are arbitrary or manifestly unreasonable (see, to this effect, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, §§ 85-86, ECHR 2007‑I).

110. The Court observes that the decision by the domestic courts to decline jurisdiction was based on section 3 of the LDIP (see paragraph 24 above). With regard to the present case, the Federal Court pointed out from the outset that this provision was to be interpreted in a restrictive manner (see paragraph 22).

111. With regard to the first condition for the application of a “forum of necessity” within the meaning of that provision, the Federal Court concluded that the Swiss authorities did not have jurisdiction under another provision of the domestic law. By contrast, in so far as the third condition was in any event not satisfied (see below), that court left open the question whether an action abroad was impossible or could not reasonably be required (second condition).

As to the third condition, the only one relevant to the Court’s current analysis, the Federal Court concluded that that there was no link between the applicant’s case and Switzerland, although the Swiss authorities had granted him political asylum on 8 November 1995, precisely on account of the persecution suffered in his country of origin, and that he had been resident in Switzerland since then, that is, for eleven and a half years at the point that the Federal Court delivered its judgment, on 22 May 2007.

112. In the light of the foregoing, the Federal Court’s interpretation of section 3 of the LDIP in the present case, while restrictive, was not arbitrary. Moreover, the Swiss courts’ decision that they lacked jurisdiction did not seem unreasonable in the light of the fact – as ascertained by the Federal Court – that “all of the specific features of the case come back to Tunisia, except for the fact of residence in Italy [at the relevant time]” (recital 3.5 of the judgment, cited in paragraph 22 above; see, a contrario, Arlewin v. Sweden, no. 22302/10, §§ 72 et seq., 1 March 2016). In those conditions, the Swiss authorities were justified in taking account of the problems of taking evidence and of enforcing judgments that would arise, as set out above (see paragraph 107), as a result of their accepting jurisdiction in such circumstances. The Court considers that the Federal Court was also justified in finding that the fact that the applicant had settled in Switzerland after the events did not alter the decision to declare that the Swiss courts did not have jurisdiction, that fact being “subsequent to the case, and unconnected with it”.

113. Admittedly, the applicant obtained Swiss nationality in the intervening period. The Court notes that on 14 May 2007 the Versoix Municipal Council gave its consent to the applicant’s acquisition of nationality, which was confirmed by a letter from the Town of Versoix of 25 May 2007, following the Canton of Geneva’s favourable opinion of 6 November 2006, confirmed by the authorisation issued by the Federal Migration Office on 21 May 2007. The Town of Versoix’s confirmation of the applicant’s acquisition of nationality was thus issued after the adoption of the Federal Court’s judgment of 22 May 2007 and could not be taken into account by it.

114. Moreover, the survey carried out by the Court confirmed the Federal Court’s rejection of the concept of the “forum of necessity”. It showed, firstly, that only a minority of the States Parties to the Convention, or nine of the 26 Contracting States studied, provide for this type of jurisdiction (see paragraph 59 above). It has also been applied in Canada in recent years, but subject to strict conditions (see paragraph 60 above). In the States which apply this concept, it is, as in Switzerland, subject to strict conditions, which have to be met cumulatively, namely the inability to bring the dispute before the courts of another State and the existence of a certain connection between the facts of the dispute and the requested forum State (see paragraph 65 above). The sufficient connection was normally based on nationality and domicile or habitual residence. It follows that section 3 of the LDIP is in no way exceptional and falls within a very broad consensus among the member States of the Council of Europe which have introduced this form of jurisdiction into their own legal systems.

ii. The lack of other norms of international law obliging the respondent State to examine the merits of the applicant’s action

115. The Court would then reiterate the need to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part (see Nada, cited above, § 170). In this connection, it has already had occasion to state that measures taken by a State which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1 (see, in particular, Cudak v. Lithuania [GC], no. 15869/02, § 57, ECHR 2010; Al-Adsani, cited above, § 56; and Jones and Others, cited above, § 189).

116. In so far as the Court has jurisdiction to examine this question in the light of Article 32 of the Convention, it is of the opinion that the respondent State is not bound to accept universal jurisdiction in a civil context under other norms of international law, despite the undisputed jus cogens nature of the prohibition on torture in international law, for the reasons set out below.

117. Firstly, the wording of Article 14 of the Convention against Torture, ratified by Switzerland, is not unequivocal as to its extra-territorial application. Nor are the legal writings unanimous (see paragraphs 30‑32 above) and no concrete element can be concluded from the preparatory works to that provision (see paragraphs 33-35 above).

118. Furthermore, although the Committee against Torture has indicted, particularly in its General Comment no. 3 (2012), that the application of Article 14 is not limited to victims of torture committed on the territory of the State Party or by or against a national of the State Party, that approach has not been followed by the States Parties to that instrument. On the contrary, the survey showed that none of the 26 European States covered by the present survey currently recognise universal civil jurisdiction in respect of acts of torture; such a jurisdiction existed only in the United States and, to a more limited extent, in Canada (see paragraphs 48 and 52-53 above). Moreover, with regard to the United States, it seems that in order for a case to be examined by an American court the person against whom proceedings are brought must be within the jurisdiction of the United States at the time that the action is lodged.

119. Furthermore, several States provide for the universal criminal jurisdiction of their courts, with the victim thus able to join proceedings brought before a criminal court as a civil party. In the present case, the applicant had indeed applied to join the proceedings as a civil party in relation to his criminal complaint of 14 February 2001; however, that complaint was discontinued after A.K. left Switzerland (see paragraph 14 above).

120. In view of the above considerations, the Court concludes that Switzerland was not bound by any convention obligation to accept the applicant’s civil action. Nor were the authorities of that State under such an obligation under customary law, given the clear lack of a common practice of States, expressing an opinio juris to that effect (Article 38 § 1 (b) of the ICJ Statute) in favour of the existence of universal civil jurisdiction.

iii. Conclusion

121. In conclusion, the Court considers that the Swiss courts’ refusal to accept jurisdiction to examine the applicant’s civil action for damages as reparation for the damage caused by the alleged acts of torture, notwithstanding the fact that the prohibition on torture is part of the jus cogens, did not deprive the applicant’s right of access to a court of its very essence, pursued legitimate aims and was proportionate to the aims pursued. It follows that there was no breach of the right of access to a court within the meaning of Article 6 § 1 of the Convention, with regard both to the action against Tunisia and to the action brought against A.K.

122. There has accordingly been no violation of Article 6 § 1.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the application admissible;

2. Holds, by four votes to three, that there has been no violation of Article 6 § 1 of the Convention.

Done in French, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) concurring opinion of Judges Lemmens;

(b) dissenting opinion of Judges Karakaş, Vučinić and Kūris.

A.I.K.
S.H.N.

CONCURRING OPINION OF JUDGE LEMMENS

1. I entirely agree with the finding in the judgment that there has been no violation of Article 6 § 1 of the Convention.

However, I should to like to specify that, in my opinion, the approach adopted by the majority is by no means incompatible with international law and, in particular, with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

2. Paragraphs 117-118 of the judgment may give the impression that Article 14 of the Convention against Torture may – or even must – be read as obliging the States Parties to recognise the international jurisdiction in civil matters of their courts for acts of torture that may have been committed in another country by persons who are not resident in the country at the time that the case is brought before their courts.

In my opinion, however, it is clear from the case-law of the Committee against Torture that Article 14 does not lend itself to such a broad interpretation.

In the case of Roitman Rosenmann v. Spain (2002), cited in paragraph 42 of the judgment, the complainant criticised the Spanish Government for blocking an extradition request in respect of General Pinochet, who was then in London. The Committee against Torture clearly stated, in particular, that Article 14 did not apply ratione personae to Spain, given that General Pinochet was not in Spain (§ 6.6). Referring to that decision, the Committee took a stand again in the case of Z. v. Australia (2014), cited in paragraph 43 of the judgment. In that case, the complainant criticised the Australian courts for having dismissed her tort claim against the Chinese authorities for acts of torture committed in China, on the grounds that foreign government officials enjoyed immunity from civil liability. The Committee dismissed the communication without examining the issue of immunity, considering that “in the specific circumstances of this case, the State party is unable to establish jurisdiction over officials of another State for alleged acts committed outside the State party’s territory” (§ 6.3).

It can be inferred from these two decisions that, as long as the alleged perpetrators of ill-treatment are not present in the territory of the State Party (criminal matters) or do not reside there (civil matters), that State is under no obligation to grant victims the right to obtain reparation before its courts.

This conclusion is not contradicted by General Comment no. 3 on the Implementation by States Parties of Article 14, cited in paragraph 39 of the judgment. While the Committee considers that “the application of article 14 is not limited to victims who were harmed in the territory of the State party or by or against nationals of the State party” and it commends “the efforts of States parties for providing civil remedies for victims who were subjected to torture or ill-treatment outside their territory” (§ 22), nowhere does it suggest that the States Parties are required to recognise the civil jurisdiction of their courts irrespective of the residence of the presumed perpetrators.

Nor is the above finding contradicted by the concluding observations adopted by the Committee when examining the 4th and 5th periodic reports submitted by Canada (2005) and those in respect of the 6th period report for that State (2012), which are quoted in paragraphs 36-37 and 38 of the judgment. While the Committee criticised the fact that Canada did not guarantee civil redress to all victims of torture, this was because the victims did not have access to the existing remedies, “wherever acts of torture occurred and regardless of the nationality of the perpetrator or victim” (concluding observations on the 6th periodic report, § 15). In my opinion, these concluding observations concern the fact that the Canadian courts do not have jurisdiction for claims in respect of acts of torture committed abroad, even if these acts are committed by Canadian perpetrators or against victims who are Canadian. Nothing is said about the Canadian courts’ jurisdiction (or lack of jurisdiction) in respect of acts of torture committed abroad by foreign perpetrators who are not resident in Canada against non-Canadian victims who were not resident in Canada at the material time.

3. For these reasons, I consider that Article 14 of the Convention against Torture does not preclude a Member State from reserving the civil jurisdiction of its courts to claims that have a sufficient connection with the State concerned. This means, in my view, that in the event of acts of torture committed abroad by a foreign national against a foreign national[1], the State may require that the defendant is resident in the county or that the claimant was resident there at the relevant time.[2]

JOINT DISSENTING OPINION OF
JUDGES KARAKAŞ, VUČINIĆ AND KŪRIS

1. We disagree with the conclusion reached by the majority that there has been no violation of Article 6 § 1 of the Convention. We consider that the applicant’s right of access to a court was violated.

2. Firstly, it is undeniable that the prohibition on torture is a peremptory norm of international law (jus cogens). This has already been acknowledged in the Court’s case-law (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 60, ECHR 2001-XI). This prohibition implies positive obligations on the part of the States, including that providing adequate redress (see Ilhan v. Turkey, no. 22277/93, 27 June 2000, § 97; see also the Barrios Altos v. Peru, 14 March 2001, § 43, judgment of the Inter-American Court of Human Rights), and also appears in Article 14 of the United Nations Convention against Torture.

3. The United Nations Committee against Torture has noted on numerous occasions that there must exist effective mechanisms enabling the victims of torture to have access to redress and to obtain compensation, irrespective of the country in which the acts of torture were committed and of the nationality of the perpetrator or victim (see paragraphs 37 to 40 of the judgment).

4. It should also be noted that there exists a growing European consensus on “emergency” jurisdiction, according to which residence is a sufficient connection (see paragraph 98 of the judgment, on the third-party observations).

5. In Swiss law, section 3 of the Federal Law on Private International Law provides for the jurisdiction of the Swiss authorities by means of the forum of necessity, and Article 41 A of the Code of Obligations establishes liability for damage caused unlawfully, as well as the obligation to provide redress.

6. The question which concerns us in the present case is whether the Federal Court’s decision dismissing the applicant’s claim on the basis of section 3 of the Federal Law on Private International Law was compatible with the right of access to a court guaranteed by Article 6 § 1 of the Convention or whether that restriction was disproportionate to the aim pursued.

7. The Federal Court rejected the application of the principle of the forum of necessity on the ground that there was not a sufficient connection, by interpreting the above-cited section 3 in a very restrictive manner. Yet, according to that section, the existence, in itself, of “a sufficient connection” would enable the forum of necessity to be applied in favour of the applicant. Although it cites the Federal Council’s interpretation of that provision (see paragraph 22 of the judgment, point 3.4 of the Federal Court’s decision) and refers to the legal writings which argue that the forum of necessity must be recognised, in particular, in situations of political persecution, the Federal Court chose, in its judgment of 22 May 2007, a restrictive interpretation, although there was nothing, either in the law, or the case-law, or the legal writings, forcing it to do so. In our opinion, the Federal Court denied the applicant justice.

8. The applicant fled to Switzerland in 1992 and was granted political asylum on 8 November 1995. He obtained Swiss citizenship through naturalisation following a favourable opinion issued on 6 November 2006 by the Canton of Geneva, endorsed by authorisation from the Federal Migration Office dated 21 May 2007, and his naturalisation was confirmed on 25 May 2007 by the Versoix Municipal Council.

9. We wish to draw attention to the date of the Federal Court’s judgment, that is, 22 May 2007, which ruled that there was not a sufficient link between the applicant’s case and Switzerland! In this regard, we would again point out that the Federal Migration Office authorised the applicant’s naturalisation one day prior to the Federal Court’s judgment, that is on 21 May 2007, and that the only procedure that occurred subsequent to that date was the confirmation by the Town of Versoix on 25 May 2007. The applicant had been resident in Switzerland for eleven and a half years at the time that the Federal Court delivered its judgment on 22 May 2007, and he obtained Swiss nationality on 25 May 2007, with prior authorisation of which the Federal Court could not have been unaware, since it was dated 21 May 2007, or one day before that court’s decision.

10. The applicant’s place of residence, refugee status, the naturalisation procedure with the favourable opinion of 2006 and the authorisation of 21 May 2007, taken together with the presence in Swiss territory of the person suspected of having committed the alleged acts of torture, that is, under the jurisdiction of the State concerned, enabled a sufficiently strong connection to be established in order to apply section 3 of the Federal Law on Private International Law and to examine the applicant’s claim on its merits.

11. In the light of the above, the Federal Court’s interpretation of this provision in the present case is arbitrary and manifestly unreasonable.

12. Another aspect of the case should also be mentioned. The majority is wholly silent on a striking fact referred to in paragraphs 13 and 14 of the judgment. On 14 February 2001 the applicant filed a criminal complaint with the Principal Public Prosecutor of the Canton of Geneva against his alleged torturer. Yet the Principal Public Prosecutor did not rule on this complaint until 19 February 2001, refusing to take it into consideration on the grounds that the individual accused by the applicant had by then left Switzerland. The Government have provided no information about the reason and the date of this departure. Given that the person suspected of having committed the acts of torture was hospitalised in Switzerland on the date on which the complaint was filed, attention should be paid to the five days during which the authorities were inactive.

13. The domestic courts, together with the majority of the Chamber, have thus neglected the Swiss authorities’ failure to take account of the criminal complaint lodged by the applicant against the suspect, although the latter was at that time present in Switzerland.

14. From the moment that the individual suspected of having committed the acts of torture complained of had spent time in Switzerland, the State’s international obligations came into play and the domestic courts thus had jurisdiction for bringing criminal proceedings, during which functional immunity could not be relied on in respect of torture.

15. As the majority also admit (see paragraph 114 of the judgment), sufficient connections are usually nationality, domicile or habitual residence, and section 3 of the Federal Law on Private International Law is part of the consensus within the member States of the Council of Europe providing for a sufficient connection. The problem, however, lies in the Federal Court’s restrictive interpretation. To the impunity for perpetrators of acts of torture or crimes against humanity that may result from such an interpretation is added the inability, for the victims of those acts, to claim damages.

16. Even supposing that the effective administration of justice could represent a legitimate aim, the closing of all the proceedings related to the civil claims submitted by the applicant for the purpose of obtaining redress for the damage arising from the acts of torture complained of was disproportionate.

17. The Convention, as a “living instrument”, should be interpreted in the light of “any relevant rules of international law applicable in the relations between the parties”, particularly the “general principles of law recognised by civilised nations” (Article 38 § 1 (c) of the Statute of the International Court of Justice). “The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally ‘recognised’ fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice” (see Golder v. the United Kingdom, 21 February 1975, § 35, Series A no. 18).

18. In the present case, the dismissal of the applicant’s action without an examination of the merits by the Swiss courts impaired the very essence of the applicant’s right of access to a court (see, a contrario, Arlewin v. Sweden, no. 22302/10, §§ 72 and 73, 1 March 2016). We consider that this inability to seek redress is equivalent to a denial of justice and that, in consequence, there has been a violation of Article 6 § 1 of the Convention.

19. The interpretation and application of Article 6 § 1 of the Convention in this case ought to have built on the significant developments in recent years seeking to combat the impunity of the perpetrators of acts of torture, to the effect of enabling an action for reparation to be brought before a foreign court.

20. In the Al-Adsani case (cited above, § 60), the prohibition of torture was accepted and already acknowledged as jus cogens. The cautious wording in the present case (see paragraphs 117-121 of the judgment) suggests that the Court is not inclined to maintain this unequivocal acknowledgment. In this sense, the present judgment represents a significant regression, even compared to the above-cited Al-Adsani judgment (in which, inter alia, no violation of Article 6 § 1 of the Convention was found). It is regrettable that this judgment is akin to a tacit encouragement, by the highest human-rights court in Europe, of the denial of justice.

21. We consider that it is time for the Court to clarify this serious question, which affects the interpretation and application of Article 6 § 1 of the Convention.

22. In the (above-cited) case of Al-Adsani, one of the dissenting judges exclaimed “What a pity”. In the case of Jones and Others v. the United Kingdom (nos. 34356/06 and 40528/06, 14 January 2014), another dissenting judge echoed “What a pity!”.

23. We can also say “what a pity” that the Court does not dare to render justice in this case on the principle of the forum of necessity! Delivery of this judgment will take place a few days prior to the International Day in Support of Victims of Torture (26 June). We might note, with a sad irony, that this judgment will certainly not be applauded on that day of commemoration.

[1]. If the acts were committed in the territory of the State concerned, Article 14 seems to require that the civil jurisdiction of the courts be recognised, irrespective of the nationality or the residence of either the victim or the presumed perpetrator.

[2]. According to Article 5 § 1 (c) of the Convention against Torture, which concerns the criminal jurisdiction of the courts, “each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences [of torture or complicity in torture] ... when the victim is a national of that State if that State considers it appropriate”. According to Article 5 § 2, “Each State Party shall ... take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him” (see paragraph 29 of the judgment). It would be surprising if a stronger obligation, not explicitly foreseen by the Convention against Torture, existed for civil jurisdiction.

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