Information Note on the Court’s case-law 255
J.C. and Others v. Belgium – 11625/17
Judgment 12.10.2021 [Section III]
Access to court
Refusal by the courts to assume jurisdiction to examine a civil claim for sexual abuse against the Holy See, which enjoyed immunity from jurisdiction: no violation
Facts – The applicants brought before the Belgian courts a compensation claim against the Holy See, several senior clergymen of the Belgian Catholic Church, and some Catholic associations, on grounds of harm caused by the structurally deficient manner in which the Church had dealt with sexual abuse allegations.
On 25 February 2016 the Court of Appeal held that it had no jurisdiction to entertain the claim, in particular on account of the immunity from jurisdiction enjoyed by the Holy See.
Article 6 § 1:
The present case raised, for the first time before the Court, the question of the immunity of the Holy See. The Court of Appeal had found that it had no jurisdiction to adjudicate upon the applicants’ claim, having observed that the Holy See enjoyed immunity from jurisdiction. It had stated that the Holy See was recognised internationally as having the common attributes of a foreign sovereign power, with the same rights and obligations as a State; it was a party to some major international treaties and had signed agreements with other sovereign powers; it had diplomatic relations with some 185 States and was recognised as a State in particular by Belgium. The Court did not find anything unreasonable or arbitrary in the domestic court’s detailed reasoning.
The Court of Appeal had thus concluded that the Holy See in principle enjoyed jurisdictional immunity, as enshrined in customary international law and codified in Article 5 of the United Nations Convention on Jurisdictional Immunities of States and their Property and Article 15 of the European Convention on State Immunity.
The granting of jurisdictional immunity to a State was to be seen as a procedural obstacle to the possibility for national courts to adjudicate upon a substantive right. In cases where such immunity impeded the exercise of the right of access to a court, the Court had to consider whether the circumstances of the case justified this impediment.
With regard to the proportionality of the limitation on the applicants’ right of access to a court, measures taken by a State which reflected generally recognised principles of international law on State immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access to a court.
Following an analysis of the principles of public international law, canon law and Belgian practice, the Court of Appeal had considered that the acts and omissions of which the Belgian bishops and heads of orders, together with the Holy See, were accused, directly or indirectly, fell within the exercise of administrative powers and public authority, and therefore concerned acts of public authority. Immunity from jurisdiction therefore applied ratione materiae to all those acts and omissions. The approach of the Court of Appeal had been consistent with international practice in this area. It had addressed all the arguments advanced by the applicants to challenge this immunity, such as their point that the Holy See’s policy was intended to provide support only to the Catholic Church, a religious organisation, and not to safeguard the interests of the Vatican City as a public-law entity. The Court found nothing arbitrary or unreasonable in the Court of Appeal’s interpretation.
In so far as the applicants had alleged that State immunity from jurisdiction could not be maintained in cases involving inhuman or degrading treatment, the Court had previously concluded that in the current state of international law it could not be said that States no longer enjoyed jurisdictional immunity in cases involving serious violations of human rights, of international humanitarian law, or of jus cogens norms. In Jones and Others v. the United Kingdom the Court had referred to the judgment of the International Court of Justice in Germany v. Italy, finding that it had “clearly” established that by February 2012 “no jus cogens exception to State immunity had yet crystallised”. While subsequent development of customary international law or Convention law could not be ruled out, the applicants had not provided any evidence to suggest that international law had developed since 2012 to such an extent that the Court’s previous findings were no longer valid.
The applicants had accused the Holy See of failing to take measures to prevent or remedy acts constituting inhuman treatment. The Court considered that it would require an additional step before it could conclude that the jurisdictional immunity of States no longer applied to such alleged failures.
Secondly, the applicants had referred before the Court of Appeal to an exception to the principle of jurisdictional immunity of States where “a proceeding … relate[d] to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property” (Article 12 of the United Nations Convention on Jurisdictional Immunities of States and their Property; Article 15 of the European Convention on State Immunity). This exception applied, however, only if the act or omission allegedly attributable to the foreign State “occurred in whole or in part in the territory of [the forum State] and … the author of the act or omission was present in that territory at the time of the act or omission”.
The Court of Appeal had rejected the applicability of that exception on the grounds, inter alia, that the misconduct of which the Belgian bishops were accused could not be attributed to the Holy See, since the Pope was not the principal of the bishops; that the misconduct of which the Holy See was directly accused had not been committed on Belgian territory but in Rome; and that neither the Pope nor the Holy See had been present on Belgian territory when the misconduct of which the Belgian Church leaders were accused had allegedly been committed. It was not for the Court to substitute its own assessment for that of the national courts unless their findings were arbitrary or manifestly unreasonable.
Lastly, the applicants had contended that the Holy See’s immunity from jurisdiction had the effect that victims of sexual abuse in the Catholic Church were completely deprived of access to justice, having no possibility of obtaining redress from the Holy See before a court in Vatican City.
The compatibility of a State’s immunity from jurisdiction with Article 6 § 1 of the Convention did not depend on the existence of reasonable alternatives for the resolution of the dispute. However, the interests at stake for the applicants had been very serious, concerning an underlying pattern of acts of sexual abuse falling within the scope of Article 3 of the Convention, and the existence of an alternative was certainly desirable. But the applicants had not been left without any remedies.
The criminal complaint they had filed as civil parties in 2010, alleging sexual offences and culpable omission, was still at the judicial investigation stage and had not yet reached the point where compensation might be awarded for the damage they claimed to have sustained.
Moreover, the proceedings before the court of first instance, which had also been directed against senior clergymen of the Catholic Church in Belgium, had not succeeded because of the applicants’ failure to comply with procedural rules. Assuming that their action had been admissible, the Belgian courts could have examined the merits of their claim in so far as it was directed against the senior clergy in Belgium.
In view of all the foregoing considerations, the Belgian courts’ refusal to assume jurisdiction to hear the civil liability claim brought by the applicants against the Holy See had not departed from the generally recognised principles of international law on State immunity, and the restriction on the right of access to a court could not therefore be regarded as disproportionate to the legitimate aims pursued.
Conclusion: no violation (six votes to one).
(See also Al-Adsani v. the United Kingdom [GC], 35763/97, 21 November 2001, Legal summary; Fogarty v. the United Kingdom [GC], 37112/97, 21 November 2001, Legal summary; McElhinney v. Ireland [GC], 31253/96, 21 November 2001, Legal summary; Kalogeropoulou and Others v. Greece and Germany (dec.), 59021/00, 12 December 2002, Legal summary; Cudak v. Lithuania [GC], 15869/02, 23 March 2010, Legal summary; Sabeh El Leil v. France [GC], 34869/05, 29 June 2011, Legal summary; Jones and Others v. the United Kingdom, 34356/06 and 40528/06, 14 January 2014, Legal summary)