By Daniel Rietiker*
On March 15, 2018, in the case of Naït-Liman v. Switzerland, the European Court of Human Rights (“ECtHR”) held that there had been no violation of the right to access a court within the meaning of Article 6, § 1 of the European Convention on Human Rights (“ECHR”). The case concerned the refusal by the Swiss courts to examine the applicant’s civil claim for compensation for the non-pecuniary damage arising from acts of torture allegedly inflicted on him in Tunisia in 1992.
I offer a critical discussion of this important case with an attempt to define the limits in the global fight against torture. In Part I, I present the facts of the case, as well as the reasoning and the main conclusions of the Court; in Part II, I critically assess the judgment from three different angles. In the final Part, I add several personal conclusions.
I. The ECtHR Decision
The applicant, Abdennacer Naït-Liman, born in 1962, is a Tunisian national who has acquired Swiss nationality during the proceedings before the Swiss tribunals.
He was arrested in April 1992 by the police in Italy and taken to the Tunisian consulate in Genoa. He was then taken to Tunis by Tunisian authorities. He alleges that, from April 25, 1992 to June 1, 1992, he was detained and tortured in Tunis in the premises of the Ministry of the Interior on the orders of A.K., the then-Minister of the Interior. In 1993, he fled Tunisia for Switzerland, where he was granted asylum in 1995.
On July 8, 2004, the applicant lodged a claim for damages with the courts of the Canton of Geneva against Tunisia and against A.K. This claim was not successful and rejected by all courts, in last instance by the Federal Supreme Court, which dismissed it on May 22, 2007. The latter court held that it lacked territorial jurisdiction and that the Swiss courts did not have jurisdiction under the “forum of necessity” in the case at hand, owing to the lack of a sufficient link between, on the one hand, the case and the facts, and, on the other, Switzerland. A forum of necessity is a subsidiary forum, enshrined in Article 3 of the Federal Law on Private International Law, which reads as follows:
Where the 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.
On November 20, 2007, the applicant lodged an application with the Court, whose second section delivered a Chamber judgment on June 21, 2016, holding, by four votes to three, that there had been no violation of Article 6 of the ECHR. On November 28, 2016, a panel of five judges accepted a request to refer the case to the Grand Chamber.
Regarding the merits of the case, the Court applied the traditional test, namely whether the limitation of the access to a court pursued a legitimate aim and was proportionate. It identified several legitimate aims pursued by the restriction on the right of access to a court, which were all related to the proper administration of justice, particularly in terms of the problems in gathering and assessing the evidence, the difficulties linked to execution of a judgment, the State’s wish to discourage forum-shopping, the risk of attracting similar complaints, which could create an excessive workload for the domestic courts, as well as the risk of potential diplomatic difficulties entailed by civil jurisdiction in such circumstances.
With regard to the proportionality of the restriction on the right to access to a court, the Grand Chamber identified two concepts of international law that were relevant for the present case: universal jurisdiction and the forum of necessity.
With regard to a possible international custom in the field of universal jurisdiction, although the States’ practice was evolving, the prevalence of universal civil jurisdiction was not yet sufficient to indicate the emergence, far less the consolidation, of an international custom which would have obliged the Swiss courts to find that they had jurisdiction to examine the applicant’s action. As it currently stood, international treaty law, in particular Article 14 of the UN Convention Against Torture also failed to recognize universal civil jurisdiction for acts of torture, obliging the States to make available civil remedies in respect of acts of torture perpetrated outside the State territory by the officials of a foreign State.
The Court concluded that international law had not obliged the Swiss authorities to open their courts to Mr Naït-Liman on the basis of universal civil jurisdiction for acts of torture.
The Court had then to determine whether international law had imposed an obligation on the Swiss authorities to make a forum of necessity available to the applicant. As the forum of necessity was not generally accepted by the States, it could not be concluded that there existed an international custom rule enshrining the concept of forum of necessity. The Court further noted that there was also no international treaty obligation obliging the States to provide for a forum of necessity.
It followed that international law did not impose on the Swiss authorities the obligation to open their courts with a view to ruling on the merits of the applicant’s compensation claim. Therefore, Switzerland enjoyed a wide margin of appreciation in this area. In other words, its freedom to decide whether or not it considered appropriate to grant to the applicant access to court was not restricted by international law. In order to determine whether the Swiss authorities had exceeded their margin of appreciation in the present case, the Court was required to examine, in turn, Section 3 of the Swiss Federal Law on Private International Law and the decisions issued by the Swiss courts.
The Court concluded that by introducing a forum of necessity with the criteria laid down in Section 3, the Swiss legislature had not exceeded its margin of appreciation. Moreover, it was reasonable to not to take into account the links to Switzerland that the applicant has created since he was awarded asylum in Switzerland because those links did not exist at the moment of the alleged acts of torture.
In conclusion, the Court considered that the Swiss courts’ refusal to accept jurisdiction to examine Mr Naït-Liman’s action seeking redress for the acts of torture to which he was allegedly subjected had pursued legitimate aims and had not been disproportionate to them. It followed that there had been no violation of the right of access to a court within the meaning of Article 6 of the ECHR.
Judge Wojtyczek expressed a partly dissenting opinion. Judge Dedov and Judge Serghides each expressed a dissenting opinion. The latter argued, inter alia, that the majority opinion had not sufficiently taken into account the principle of effectiveness, one of the key principles in the Court’s jurisprudence.
II. Assessment of the Judgment
In part II, I will critically assess the reasoning and main conclusions of the Court. The Part is divided into three sections. Section A will deal with the right of the victims of torture to remedy and reparation; Section B will be devoted to one aspect of the Court’s interpretation methodology in the present case, as well as to its impact on the proportionnality of the restriction to the right to access to court, and Section C, finally, will examine the question whether the erga omnes effect of the prohibition of torture compelled Switzerland to open its courts to the applicant.
A. Remedy and Reparation for Victims of Torture
Without doubt the most important achievement of the judgement lies in the fact that the Court, in several paragraphs, clearly confirmed and highlighted the right for victims of acts of torture to obtain appropriate and effective redress, and that 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 with occurred outside their geographical frontiers. The following paragraph is a quotation from the “general conclusions” of the Court’s judgment:
[¶] 218. [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.
The Court further stated that the right to obtain such redress is firmly embedded in international law and, in particular, Article 14 of the UN Convention Against Torture, which had been ratified by Switzerland on December 2, 1986. Indeed, Article 14 states, “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 addition, the Court rightly referred to the UNGA Resolution 60/147, adopted on December 16, 2005, containing in its annex the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” which enshrine in their section VII the right of victims to equal and effective access to justice, adequate, effective and prompt reparation for harm suffered, as well as access to relevant information concerning violations and reparation mechanisms.
Furthermore, the Grand Chamber, in the logic of the ECHR as a “living instrument which…must be interpreted in the light of present-day conditions,” one of its most prominent interpretation principles, expressed the opinion that States are under the duty to follow the potential developments in this dynamic area of law and update their laws and practices accordingly:
[¶] 220. 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.
In other words, the Court accepted and reiterated without hesitation the existance of the right of victims of torture to redress and compensation and left open the door for future developments in the field. The exact scope of this right, however, and in particular the question whether States are obliged to guarantee this right even for acts of torture that were inflicted outside their territories by foreign officials, as the applicants submitted, was more disputed.
B. The Court’s Refusal to Read the ECHR as a Whole
and Its Impact on the Proportionality of the Restriction
Interpreting an international treaty is not a precise, mathematical exercise, but rather an art of identifying those rules among others whose application seems appropriate in a certain situation.† In the present case, the Court made strong use of the comparative element in order to determine the (broad) margin of appreciation on which Switzerland could rely. This comparative approach is appropriate and in line with international law, deriving from Article 31 § 3 (c) of the Vienna Convention of the Law of Treaties (“VCLT”), according to which “relevant rules of international law” have to be taken into consideration in treaty interpretation. On the other hand, other important interpretation principles, flowing directly from Article 31 § 1 of the VCLT, the so-called general rule of treaty interpretation prescribing that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,” are not mentioned in the legal analysis of the Grand Chamber.
In particular, the Court did not refer to the principle requiring a treaty provision to be interpreted in light of the entire text of the treaty, a principle raised by one of the third party interveners, Citizens’ Watch, and applied by the Court, inter alia, in ¶ 68 of Klass v. Germany and ¶ 48 of Stec v. United Kingdom (“The Convention must also be read as a whole…”). From my point of view, the lack of consideration of this method of interpretation had important repercussion on the proportionality of the restriction to the right to access a court for the following reasons.
In the instant case, a lot of energy has been used by the Court to determine the width of the margin of appreciation on which Switzerland could rely as a result of the absence of a consensus in this domain. If this is as such not wrong, that the margin of appreciation, as interpreted by the Court in ¶ 78 of Dickson v. United Kingdom and ¶ 68 of Emonet v. Switzerland in a given situation is not determined exclusively by the existence (or absence) of consensus of the Member States of the Council of Europe, but also by the nature and importance of the right at stake, the intensity of the interference, as well as the nature and importance of the aim pursued.
In particular, the Court did not consider the absolute nature of the prohibition of torture within the meaning of Article 3 of the ECHR, as a norm of jus cogens. In the leading case in the field of extraordinary rendition El-Masri v. the former Yugoslav Republic of Macedonia, the Grand Chamber of the Court held:
[¶]195. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation …. The Court has confirmed that even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ….
The Court chose not rely on this strong language, supposedly because the main question that it had to decide was whether Switzerland had committed a violation of the right to access a court within the meaning of Article 6 of the ECHR. In other words, not confronted with an explicit torture complaint within the meaning of Article 3 of the ECHR, the Court concluded almost automatically from the broad margin of appreciation in the instant case due to lack of consensus concerning universal civil jurisdiction and forum necessitatis to the proportionality of the restriction without pondering the competing interests at stake.
As a result, while the Court heavily—perhaps too heavily—considered how the questions of forum of necessity and universal civil jurisdiction for victims of torture was dealt with abroad, it took a narrow approach towards its own instrument, the ECHR, and did therefore not take into account the broader picture of the case, namely that Mr. Nait-Liman had endured serious acts of torture. From my point of view, this fact could have played a certain role in the question of whether the restriction of the applicant’s right to access a court has been proportionate.
C. The Erga Omnes Effect of the Prohibition of Torture
Did Not Compel Switzerland to Open Its Courts to the Applicant
The prohibition of torture is, as the Court itself has recognized in, for example, ¶ 61 of Al-Adsani v. the United Kingdom, one of the rare norms of jus cogens and an obligation erga omnes. The ICJ, in ¶ 33 of its Barcelona Traction Case, held that, by their very nature, certain obligations are the concern of all States and that, in view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omens. In ¶ 34 of the judgment, the ICJ gave some examples for such obligations, such as the outlawing of acts of aggression, and of genocide and to “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”
This has been confirmed later within the Articles on the Responsibility of States for Internationally Wrongful Acts. In accordance with their Article 48 § 1(b), “[a]ny State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if…the obligation breached is owed to the international community as a whole.” Moreover, paragraph 2(b) of the same provision adds that “[a]ny State entitled to invoke responsibility under paragraph 1 may claim from the responsible State…performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached” (emphasis added).
Within the ECHR, a special mechanism establishes, at least in theory, an erga omnes obligation allowing States Parties to file inter-State complaints. In accordance with Article 33 of the ECHR, “[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party” (emphasis added). It derives from the wording of this provision that a State Party to the ECHR does not have to be directly injured by a breach of the Convention rights in order to rely on this mechanism.
Practical and concrete examples, however, where States that were not directly affected by a violation of international law intended to invoke responsibility of another States for the safeguard of interests of the international community are very rare, if not inexistance. Antônio Augusto Cançado Trindade, former president of the Inter-American Court of Human Rights and now judge at the ICJ, argues that while the concept of obligation erga omnes has certainly entered in the international case-law, in particular the jurisprudence of the ICJ, that court had, in spite of those references, not yet extracted the consequences of the affirmation of the existence of the concept.‡
The same can basically be argued for the ECHR, where the examples of inter-State complaints, in particular the successful ones, are very rare. Moreover, the more recent applications do not contain an erga omnes logic, but have been filed by States Parties pursuing the protection of the interests of their own nationals, in the logic of the traditional “diplomatic protection” exercised by States in favour of their nationals. Examples include Georgia v. Russia I in 2014 and subsequent applications (all pending), and Ukraine v. Russia (several applications since 2014, all pending).
To sum up this section, whereas the ECHR is very tough on States Parties when they commit torture on their own territory, States Parties to the ECHR and the Court seem to care less when the impugned facts happen abroad, without obvious link to one of the States Parties to the ECHR. This is understandable and justifiable considering the weakness of the concept of obligation erga omnes in international law, which remains ineffective in practice. The result reached by the ECHR also expresses the clear quantitative difference between a well-integrated regional system of human rights protection, such as the ECHR system, on the one hand, and a universal system, where the same solidarity between members and strong institutions are often lacking, on the other.
Having regard to what precedes, the detailed and well researched judgement explains, in general, convincingly why there was no violation of the right to access a court. It contains some very positive aspects, in particular the confirmation of the existence of the right of victims of torture to remedy and compensation. Moreover, the Court did not shut the door for similar claims in the future by emphazising that this area is dynamic and subject to change and, in the same logic, by inviting 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.
As a result, it can be argued that the Court struck a defendable balance between the arguments and interests at stake. In particular, even if the concept of obligation erga omnes is more than wishful de lege ferenda, it is not a reality on the global scale yet. As a result, Switzerland, as a State Party to the ECHR, was not compelled, based solely on the prohibition of torture as an obligation erga omnes, to open its tribunals in the sense claimed by the applicant, who had been tortured in Tunisa by Tunisian officilas and who had only Tunisian nationality at the material time.
On the other hand, I argue here that, once it concluded that Article 6 ECHR is applicable to the present case, the Court had certain elements to consider the restriction to the applicant’s right to access a court disproportionate. In terms of judicial policy, it could have done so in a narrow, case-specific manner, without admitting a general duty to establish universal jurisdiction for all future cases of civil actions for reparation of torture. A broader and effective interpretation of Section 3 of the Swiss Federal Law on Private International Law, in light of the special nature of the prohibition of torture in international law (jus cogens), would not have constituted a revolutionary development, but could have enabled the applicant to seek remedy and reparation for the crimes that he had endured in Tunisia. In the same time, it would have constituted a discrete, but significant step for the rights of future victims of torture. To recall and stress the right to an effective remedy and to reparation in favor of victims of torture, on the one hand, but not to find a violation of Article 6 ECHR in the very particular situation of the applicant, on the other, looks, from my point of view, somehow half-hearted and runs at odds with the—generally—very effective and practical protection of human rights guaranteed by this unique Court that has, in the past, so much contributed to the peace and rule of law on the European continent.
* PhD., Senior Lawyer at the ECtHR (Strasbourg), international law lecturer at Lausanne University, member of the adjunct faculty of Suffolk University Law School (Boston MA). He was a visiting fellow at Harvard Law School in 2014. The views expressed in this post are strictly personal.
† See Int’l Law Comm’n, Rep. on the Second Part of Its Seventeenth Session 3–28 January 1966 and on Its Eighteenth Session 4 May–19 July 1966, U.N. Doc. A/6309/Rev.1, at 50, cmt. 4 (1966).
‡ A.A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium 313 (2nd ed., 2010).