Last Updated on November 2, 2019 by LawEuro
Information Note on the Court’s case-law 216
March 2018
Naït-Liman v. Switzerland [GC] – 51357/07
Judgment 15.3.2018 [GC]
Article 6
Civil proceedings
Article 6-1
Access to court
Absence of universal jurisdiction of civil courts in torture cases: article 6 applicable ; no violation
Facts – In 2001 a former Minister of the Interior of the Republic of Tunisia was briefly hospitalised in Switzerland. The applicant, a Tunisian political refugee who had been resident in Switzerland since 1993, lodged a criminal complaint against him for acts of torture allegedly inflicted in 1992 in the premises of the relevant Ministry in Tunisia. As the related proceedings were discontinued on the grounds that the former Minister had left Switzerland, the applicant then brought a civil claim for compensation against him and against the Tunisian State. However, the Swiss courts held that they did not have jurisdiction: Swiss law did not enshrine universal civil jurisdiction for acts of torture, and jurisdiction on the grounds of a “forum of necessity” was only accepted where the “case” had a sufficient connection with Switzerland. In particular, the Federal Supreme Court considered that it had to place itself at the time of the alleged events, that is in 1992 – thus setting aside the ties subsequently formed by the applicant with Switzerland –, and held that the term “case” ought to be understood in the restricted sense of a “set of facts” (in other words, it was the alleged facts rather than the person of the applicant which had to have a sufficient connection with Switzerland).
Law – Article 6 § 1
(a) Applicability – The applicability of Article 6 § 1 in civil matters depended on the existence of a dispute relating to “rights and obligations” which, arguably at least, could be said to be recognised under domestic law.
However – in addition to Article 41 of the Swiss Code of Obligations, which recognised the general principle of civil liability for unlawful acts –, Article 14 of the United Nations Convention against Torture (integrated into Switzerland’s legal system on its ratification in 1986) guaranteed the right of victims of acts of torture to obtain redress and to fair and adequate compensation.
The fact that the respondent State did not actually contest the existence of such a right, but rather its extra-territorial application, was immaterial. The dispute could relate not only to the actual existence of a right but also to its scope and the manner of its exercise. In the Court’s view, this question of territorial jurisdiction went to the substance of the case and was not decisive for the applicability of Article 6.
Conclusion: Article 6 applicable (sixteen votes to one).
(b) Merits – Switzerland had not imposed an excessive or illegitimate restriction on the right of access to a court.
(i) Legitimacy of the aims pursued – Several legitimate concerns could be noted on the part of the authorities, related to the principles of the proper administration of justice and maintaining the effectiveness of domestic judicial decisions: (i) the problem for the courts in gathering and assessing the evidence; (ii) the difficulty of enforcing judgments; (iii) the risk of encouraging forum-shopping, which would entail an excessive workload for the Swiss courts, especially in a context of budgetary restrictions; (iv) as a subsidiary consideration, the potential diplomatic difficulties.
(ii) Proportionality of the restriction – “Jurisdiction” was the power of an entity to rule on a question of law arising in a particular context of a dispute. It was necessary to distinguish the two grounds of jurisdiction to be considered here:
– the “universal” nature of jurisdiction referred to an absence of the required connection between the jurisdiction applied to and the “case” or impugned situation. In its absolute form, universal jurisdiction consisted in eliminating any connecting factor ratione personae or ratione loci to the forum State. The Convention against Torture provided for such jurisdiction in criminal matters (Article 5(2)), but was more ambiguous in civil matters (Article 14);
– jurisdiction under a “forum of necessity” referred to the residual jurisdiction, as an exception to the usual rules of domestic law, where proceedings abroad proved impossible or excessively difficult in law or in practice.
However, international law did not oblige Switzerland to open its courts to the applicant on either of those grounds.
The absence of a binding norm of international law left the Swiss authorities a wide margin of appreciation, which had not been exceeded by either the legislature or the courts. No arbitrary or manifestly unreasonable elements were apparent in the Federal Supreme Court’s interpretation of the relevant legal provisions. Having regard to that conclusion, the Court did not consider it necessary to examine the possible immunities from jurisdiction from which the respondents to the applicant’s claim might have benefited.
That being stated, this conclusion did not call into question the broad consensus within the international community on the existence of a right for victims of acts of torture to obtain appropriate and effective redress, nor the fact that the States were encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they were based on facts which occurred outside their geographical frontiers. In this respect, the efforts by States to make access to a court as effective as possible for those seeking compensation for acts of torture were commendable.
However, it did not appear unreasonable for a State which established a forum of necessity to make its exercise conditional on the existence of certain connecting factors with that State, to be determined by it in compliance with international law and without exceeding the margin of appreciation afforded to the State under the Convention.
Nonetheless, given the dynamic nature of this area, the Court did not rule out the possibility of developments in the future. Accordingly, and although it concluded that there had been no violation of Article 6 § 1 in the present case, the Court invited the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it.
Conclusion: no violation (fifteen votes to two).
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