Information Note on the Court’s case-law 249
March 2021
Hussein and Others v. Belgium - 45187/12
Judgment 16.3.2021 [Section III]
Article 6
Civil proceedings
Article 6-1
Access to court
Absence of absolute universal jurisdiction of the criminal courts with regard to torture in relation to civil-party applications, under a new retroactive law: no violation
Facts – In 2001 the applicants, of Jordanian-Palestinian origin, lodged a civil-party application with a view to the institution of criminal proceedings against high-ranking Kuwaiti officials for crimes under international humanitarian law, on the basis of the principle of absolute universal jurisdiction under the Act of 16 June 1993 (“the 1993 Act”). The applicants sought compensation in respect of pecuniary and non-pecuniary damage. However, the courts ruled that the defendants could not be prosecuted in Belgium, in accordance with the Act of 5 August 2003 (“the 2003 Act”) which had entered into force in 2005 and which limited the courts’ jurisdiction.
Law – Article 6 § 1: Unlike the case of Naït‑Liman v. Switzerland [GC], which had dealt with the issue of the universal jurisdiction of the civil courts in the context of autonomous civil proceedings, the present case concerned the possibility of making a civil-party application in proceedings before the criminal courts based on the principle of universal jurisdiction. However, in both types of cases the right of access to a court in civil matters was at stake and the general principles reiterated in Naït‑Liman applied in the same way.
The present case also raised an issue with regard to the application of a law to ongoing judicial proceedings. Although, in principle, the legislature was not barred in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 precluded any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute.
The applicants’ right of access to a court had been restricted by the limitation of the jurisdiction of the Belgian courts derived from the transitional provisions of the 2003 Act, which had repealed the 1993 Act providing for universal jurisdiction even in the absence of a connection with Belgium. The scope of the case was therefore confined to the civil-law consequences of the restrictions placed by the Belgian legislature on universal jurisdiction in criminal matters.
States which, like Belgium, had conferred jurisdiction on their courts to determine compensation claims in respect of acts of torture gave effect to the broad consensus among the international community on the existence of a right for victims of acts of torture to obtain appropriate and effective redress, including when their claims were based on acts that had occurred outside the geographical frontiers of the forum State. However, neither international law nor the Convention created an obligation for the Contracting States to assume universal civil jurisdiction. Furthermore, it was not unreasonable for a State to make such jurisdiction conditional on certain connecting factors with that State. In the instant case the reasons relating to the proper administration of justice that had been cited when the bill was being examined in Parliament, as justification for the introduction of new criteria governing universal jurisdiction, as well as the related issue of immunity which prosecutions of this type raised under international law, could be regarded as weighty reasons of public interest.
In 2001, when the applicants had lodged their civil-party application, Belgian law had recognised an absolute form of universal criminal jurisdiction. Thereafter, the legislature had progressively introduced criteria requiring a connection ratione personae and ratione loci with Belgium, as well as a filtering system for assessing whether a prosecution should be brought. When the 2003 Act came into force in 2005 the proceedings in question did not satisfy the new criteria laid down for future cases with regard to the jurisdiction of the Belgian courts. Hence, the applicants’ case would not have been allowed to proceed on that basis. However, as the Belgian courts had still had jurisdiction to hear the applicants’ case when the 2003 Act had come into force, since at the time the proceedings were first brought at least one of the complainants had had Belgian nationality – one of the criteria laid down in the transitional provisions of the Act – it could not be said that the legislature’s intervention made it pointless to continue the proceedings simply because the Act was applicable to pending cases (see, conversely, Arnolin and Others v. France). Nevertheless, in view of the Court of Cassation ruling of December 2010, according to which the Belgian courts no longer had jurisdiction unless an investigative act had been carried out prior to the entry into force of the Act, the applicants’ action was bound to fail if it transpired that no such act had been carried out, as the Indictments Division and the Court of Cassation had subsequently found.
The notion of investigative act had not been defined by the Act and had been subject to varying interpretations. However, after the Court of Cassation had emphasised the relevance of an investigative act having been performed, the applicants had confined their submissions to certain procedural acts. The Court did not express a view as to whether they could usefully have extended their arguments to other procedural acts that had likewise been dismissed by the Indictments Division, but it noted that those other acts had subsequently been found to be relevant by the advocate-general at the Court of Cassation. In any event, the Court noted that the applicants’ complaint as set out in their second ground of appeal had referred to certain specific acts.
Furthermore, the reasons given by the courts for declining jurisdiction had been neither arbitrary nor manifestly unreasonable.
In view of all these considerations, the decision of the Belgian courts, following the entry into force of the 2003 Act, to decline jurisdiction to examine the civil-party application lodged by the applicants in 2001 with a view to the institution of criminal proceedings for serious violations of international humanitarian law, and claiming compensation for the damage allegedly sustained on that account, had not been disproportionate to the legitimate aims pursued.
Conclusion: no violation (unanimously).
The Court also held that there had been no violation of Article 6 § 1 of the Convention with regard to the reasoning of the decisions given by the Indictments Division and the Court of Cassation.
(See also Arnolin and Others v. France, 20127/03 et al., 9 January 2007, Legal summary; Naït‑Liman v. Switzerland [GC], 51357/07, 15 March 2018, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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