The Grand Chamber of the European Court of Human Rights has announced its judgment in the case of Naït-Liman v Switzerland, confirming that the refusal of the Swiss courts to examine a refugee’s civil claim for torture in Tunisia was not a violation of Article 6 § 1 of the European Convention on Human Rights. The decision addresses the concepts of forum of necessity and universal civil jurisdiction, and has important implications for civil claims arising out of wrongful acts that have taken place abroad.
In April 1992, Tunisian national and political activist Abdennacer Naït-Liman was arrested in Italy and flown to Tunis, where he was handed over to members of the Tunisian authorities. Naït-Liman subsequently alleged that on the orders of the then Minister of the Interior, Abdallah Kallel, he was detained for 40 days and brutally tortured with bats, electric shocks, and suspension. He escaped Tunisia in 1993 and travelled to Switzerland with his wife and children, where he was granted refugee status in 1995 and Swiss nationality in 2007.
Naït-Liman learned on 14 February 2001 that Abdallah Kallel was in Switzerland receiving treatment at a hospital, and filed a criminal complaint against him. Kallel was, however, able to leave Switzerland before he was apprehended by the Swiss authorities.
Following the failure of the criminal action, and unable to obtain justice in Tunisia, Naït-Liman initiated a civil action for damages in Switzerland against Abdallah Kallel and the Tunisian Government. He was supported in the Swiss and subsequent European Court proceedings by Swiss NGO TRIAL International.
The Swiss courts refused to assume jurisdiction for Naït-Liman’s claim, on the basis of their interpretation of Article 3 of the Swiss 1987 Federal Act on International Private Law (Loi fédérale sur le droit international privé (LDIP)). Article 3 provides:
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. (Translated to English)
While the provision appears to provide a forum of necessity for civil claims that do not have an available forum elsewhere, the Swiss Federal Supreme Court narrowly interpreted the term “case” (in French, “cause”) as referring only to the facts of the case at the time of wrongful act – in Naït-Liman’s case at the time of his alleged torture in 1992. As a result, the Court did not consider Naït-Liman’s subsequent receipt of refugee status in Switzerland, his 14 years of residence in Switzerland, his eventual naturalisation in Switzerland, or the previous presence of Abdallah Kallel in Switzerland, as relevant to establishing a “connection” between his case and Switzerland. On that basis the Swiss Federal Supreme Court concluded that Naït-Liman had failed to establish the “sufficient connection” that was necessary for the Swiss courts to assume jurisdiction under Article 3 of the LDIP.
European Court Proceedings
With the support of TRIAL International, Naït-Liman filed an application with the European Court of Human Rights in November 2007, alleging that Switzerland’s refusal to assume jurisdiction for his civil claim was a violation of his Article 6 § 1 right of access to a court under the European Convention.
On 21 June 2016, the Chamber held by a 4-3 majority that Switzerland had not violated Article 6 § 1 in refusing jurisdiction to Naït-Liman’s claim. Naït-Liman appealed to the Grand Chamber.
The Grand Chamber ruled on 15 March 2018, by a 15-2 majority, that there had been no violation of Article 6 § 1.
Legitimate Aims of the Restriction
The Grand Chamber found that Switzerland’s restriction of Article 6 § 1 in Naït-Liman’s case pursued several legitimate aims relating to the proper administration of justice [para 122]. It referred to problems in gathering and assessing evidence and of enforcing any judgment that would have resulted from Naït-Liman’s claim; it agreed with Switzerland’s concerns about discouraging forum-shopping and the risk of putting too great a burden on the Swiss courts by allowing claims from other claimants in a similar position to Naït-Liman; and it accepted that a “State cannot ignore the potential diplomatic difficulties entailed by recognition of civil jurisdiction in the conditions proposed by the applicant” [paras 123-127]. The Grand Chamber did not appear to have been persuaded by the increasing number of cases in which States have exercised universal (both criminal and civil) jurisdiction despite those challenges.
Proportionality – Public International Law
Turning then to proportionality, the Grand Chamber noted that the scope of Switzerland’s margin of appreciation depended, among other things, on the relevant international law in this area [paras 173-175]. The Court considered it necessary to examine two international law concepts that it saw as being relevant to the case: universal civil jurisdiction and forum of necessity.
Naït-Liman’s position before the Grand Chamber was that the case did not require the Court to rule on the existence of universal civil jurisdiction. It was argued that the case concerned instead whether a State that had legislated for a right of access to its courts based on forum of necessity could interpret that provision in a manner that disregarded the ties that one of the parties to the dispute had with that State. However, the Court still considered it necessary to examine universal civil jurisdiction, as it viewed Naït-Liman’s arguments as coming very close to such an approach. The Court noted that of the 39 European States that had been examined in the Court’s comparative law analysis, only the Netherlands recognised universal civil jurisdiction for acts of torture [para 69]. The Court also noted that the United States and Canada recognised universal civil jurisdiction, although the latter required torture to have taken place in the context of terrorism. The Court recognised, as was pointed out by joint interveners REDRESS and l’Organisation Mondiale Contre la Torture (OMCT), that a number of States also allow victims to join as civil parties to criminal proceedings brought on the basis of universal jurisdiction [paras 79-83]. The Court concluded, however, that there currently existed no customary international law rule of universal civil jurisdiction.
In the Grand Chamber’s discussion of the international law on universal civil jurisdiction, a certain amount of attention was devoted to Article 14 of the Convention Against Torture providing for victims’ right to redress. Naït-Liman, as well as a number of interveners, REDRESS, OMCT, Amnesty International and the International Commission of Jurists, had argued that Article 14 required States to interpret their domestic legal provisions in a way that did not negate the right of victims of torture to redress, even when that torture took place abroad. The United Kingdom, which also intervened, disagreed with that interpretation. While the Court acknowledged that the Committee Against Torture had endorsed an expansive interpretation of Article 14 in its General Comment No. 3, it did not consider that sufficient to establish a rule of international law, in part because the Court considered that the Committee Against Torture had taken a more restrictive interpretation in its examination of individual communications [paras 189-190].
On the question of forum of necessity, in a fairly brief examination of the issue, the Court similarly found no existence of a customary international law. According to the Court, 28 European States did not recognise the concept of forum of necessity [para 200]. In all States that recognised forum of necessity, some form of connection between the dispute and the State was required, although practice varied between States on what that connection needed to be.
Proportionality – Swiss Courts’ Decision
The Grand Chamber went on to find that the Swiss Federal Supreme Court’s interpretation of Article 3 of the LDIP had not been arbitrary or manifestly unreasonable. It reached this conclusion on the basis of the wide margin of appreciation granted to Switzerland in the absence of an applicable rule of customary international law, and also on the basis of previous practice of the Swiss courts in interpreting Article 3 of the LDIP.
The Grand Chamber therefore concluded that Switzerland’s restriction of Naït-Liman’s right of access to a court under Article 6 § 1 was proportionate to the legitimate aims pursued. It did, however, offer this conciliatory note at the end of the judgment:
[I]t should be reiterated that this conclusion does 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 are encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are 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 are commendable.
However, it does not seem unreasonable for a State which establishes 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 does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites 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. [paras 218-220]
Two judges dissented with the majority’s decision and found that there had been a violation of Article 6 § 1. Judge Dedov considered that the majority decision, among other things, attached “too much importance to the principle of non-interference” between States, and failed properly to account for the Committee Against Torture’s comments on the interpretation of Article 14 of the Convention Against Torture.
Judge Serghides’s view was that the Swiss Federal Supreme Court’s interpretation of Article 3 of the LDIP was so restrictive as to render it meaningless. He therefore found the Swiss courts’ interpretation to be manifestly unreasonable.
This decision will no doubt be seen by some as a missed opportunity to underscore States’ obligations to provide a means of redress to the victims of torture and other international crimes. There will be disappointment in particular at the Grand Chamber’s failure to give more weight in its analysis to the right of torture victims under international law to an effective remedy and reparation.
From a policy perspective, one might ask, as Judge Serghides did, whether the Grand Chamber accepted too easily Switzerland’s argument that the purported aims of the restriction on jurisdiction were legitimate. Are difficulties in evidence gathering and enforcement of judgments a legitimate basis for applying a blanket rule against exercising jurisdiction, or are they principally concerns for the claimant that are best examined by the court on a case-by-case basis? Was a concern about forum shopping relevant at all to Naït-Liman’s case, when the Swiss courts themselves acknowledged that Naït-Liman had no other forum available to him? Are the supposed burdens on the domestic court system of accepting claims like Naït-Liman’s borne out in practice in the countries that take a more expansive approach to jurisdiction? And are these concerns any more relevant in stand-alone civil claims than they are in civil claims that are attached to criminal proceedings, where, as pointed out by interveners REDRESS and OMCT, States have demonstrated more of a willingness to exercise forms of universal jurisdiction?
There may be some sympathy with Naït-Liman’s position that the Swiss courts’ interpretation of the forum of necessity provision in Swiss law was so restrictive as to have been manifestly unreasonable. The Swiss Federal Supreme Court decided that only facts that existed at the time of the wrongful act (in Naït-Liman’s case his torture in Tunisia in 1992) were relevant to establishing a sufficient connection for forum of necessity. The result of such an approach is that the range of circumstances in which forum of necessity would provide a basis for exercising jurisdiction that would not already be covered by one of the more typical bases of jurisdiction would be limited severely, perhaps entirely.
There are, though, still some grounds for optimism in the decision for those that advocate for the rights of victims. The Grand Chamber underlined that States are permitted to exercise universal civil jurisdiction and encouraged States to “make access to a court as effective as possible.” It clearly recognised the potential for further changes to the law, and left the door open for future developments.
The author contributed to REDRESS and OMCT’s joint third-party intervention before the Grand Chamber in Naït-Liman v Switzerland. The author wishes to thank Naomi Barker for her assistance with this piece.