March 28, 2018
By Corina Heri, postdoctoral researcher at the University of Amsterdam
On 15 March 2018, the ECtHR’s Grand Chamber issued its first judgment of the year. The case in question is Naït-Liman v. Switzerland, and it concerns the right of a refugee to seize a Swiss court with a civil claim for damages resulting from torture allegedly suffered in a third State, Tunisia. Specifically, the Grand Chamber examined whether – as a forum of necessity or as a matter of universal civil jurisdiction – the Swiss courts were required by Article 6 § 1 ECHR to examine the applicant’s civil claim for compensation against Tunisia. Like the Chamber, the Grand Chamber found that this was not the case, and considered that the Member States are under no international law obligation to provide universal civil jurisdiction for torture.
Facts of the case
In 1992, in Tunisia, the applicant – a Tunisian national at the time – was tortured by security forces on the orders of the then-Minister of Interior, A.K. He was allegedly beaten and subjected to the so-called “roast chicken” technique for more than a month. The applicant fled to Switzerland in 1993, where he was granted political asylum on the basis of his ordeal.
On 14 February 2001, upon discovering that A.K. was receiving treatment at a Geneva hospital, the applicant filed a criminal complaint against him. However, A.K. had already left the hospital by that point, and on 19 February the proceedings were discontinued given that A.K. had left the country. The applicant did not challenge this decision.
In 2004, the applicant filed a civil suit against A.K. and against Tunisia in Switzerland, seeking compensation for non-pecuniary damage. In 2005, the first instance court held that it did not have territorial jurisdiction given that the acts in question had occurred abroad and the defendants had no link to Switzerland. It also held that the ‘forum of necessity’ provision in the Federal Law on Private International Law, which permits subsidiary jurisdiction, did not apply because the alleged torture had no connection to Switzerland when it took place.
The applicant’s appeal was rejected based on considerations about the respondents’ immunity. In 2007, the Swiss Federal Tribunal likewise dismissed the applicant’s appeal, although on different grounds. It held that the Swiss courts lacked jurisdiction as a forum of necessity because the case lacked a connection to Switzerland when the torture occurred. Therefore, it was not necessary to consider the issue of immunity.
In the same week as the Federal Tribunal’s judgment, the applicant obtained Swiss nationality.
The Chamber judgment
In 2016, the Court’s Second Section examined the applicant’s complaint that the Swiss courts had violated Article 6 § 1 ECHR (the right of access to court). The Chamber examined whether the Swiss courts were obligated to accept jurisdiction as a forum of necessity, finding – by four to three – that the legitimate aims put forth (including the proper administration of justice, the effectiveness of judicial decisions, practical difficulties concerning evidence and enforcement, and political consequences) justified the domestic decisions. In particular, the domestic authorities had been justified in finding that the applicant’s relocation to Switzerland was “subsequent to the case, and unconnected with it” (§ 112).
The Chamber also examined whether universal civil jurisdiction was a requirement under international law, and found – on the basis of a comparative analysis – that it was not. The applicant’s right of access to a tribunal had not been deprived of its very essence, and there had therefore been no violation of Article 6 § 1.
The three judges in the minority dissented, arguing that the restrictive domestic approach to the forum of necessity was unwarranted and constituted a denial of justice. The finding that the case lacked a connection to Switzerland, they argued, was “arbitrary and manifestly unreasonable.” They also argued that the majority failed to maintain the Court’s acknowledgment of the prohibition of torture as jus cogens and encouraged denials of justice.
The Grand Chamber
The Grand Chamber, in its judgment, made a number of preliminary remarks concerning the scope of the dispute. Showing concern about undermining torture victims’ access to justice, it noted the existence of a broad international consensus regarding the right to redress and compensation for acts of torture committed within the forum state. It further noted that it was unnecessary to examine the question of immunity, given that this would only come into play once jurisdiction was established.
Moving on to the applicability of Article 6 § 1, the Grand Chamber considered that the provision applied, inter alia because there was a “genuine and serious dispute” and also given the right to redress and compensation for victims of torture enshrined in Article 14 UNCAT.
On the merits, concerning the requirement of a legitimate aim, the Grand Chamber reiterated the reasons accepted by the Chamber and also referred to discouraging forum shopping and managing the domestic courts’ workload. Turning to the proportionality requirement, the Court considered a number of third party interventions, including from the UK Government – which argued that the Swiss approach was proportionate – and from a number of NGOs – which supported the applicant’s claims and underscored the importance of fighting impunity. The Grand Chamber then turned to the domestic margin of appreciation, considering whether the Swiss authorities were under an international obligation to allow the applicant access to their courts by virtue of either (a) universal civil jurisdiction or (b) the forum of necessity.
First, the Court examined whether Switzerland had an obligation to recognize universal civil jurisdiction for torture claims by virtue of customary or treaty law. Regarding custom, the Court noted that only one of the 39 Member States whose legal orders it examined recognizes universal civil jurisdiction for torture, namely the Netherlands. It also mentioned legal avenues in the US and Canada and the possibility of bringing civil claims in the context of criminal proceedings. However, the Court held, there is not yet an international consensus – and thus no customary obligation – to recognize universal civil jurisdiction for torture claims. With regard to possible treaty obligations, the Court noted that the Committee against Torture has advocated an extensive interpretation of Article 14 UNCAT, also in a geographic sense, but that its practice in examining individual communications is more restrictive. Based on this and the travaux préparatoires to Article 14 UNCAT, the Court found that Switzerland had no legal obligation to open its domestic courts to the applicant’s claim.
The Court also treated the forum of necessity doctrine as question of international law, and found that States have no customary or treaty obligation to provide such a forum. Absent an international legal obligation to open its courts to the applicant’s claim, the Grand Chamber held, Switzerland had a wide margin of appreciation. As the Federal Court’s interpretation of domestic law was not manifestly disproportionate to the legitimate aims pursued, there had therefore been no violation of Article 6 § 1.
The Court, in concluding its judgment, again noted that its finding should not be read as undermining torture victim’s rights to redress, and commended States that had opened such avenues (§ 218). It also, “given the dynamic nature of this area”, left room for further developments, and invited States “to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture” (§ 220).
The judgment was not unanimous: Judge Wojtyczek dissented on the admissibility of the case, and Judges Dedov and Serghides each wrote a dissenting opinion concerning the finding on the merits. Given space constraints – and as the three separate opinions, which raise many interesting points, span exactly half of the 122-page judgment – the relevant arguments made in these opinions will be incorporated into the comments below.
Naït-Liman will have come as a disappointment to victims’ rights advocates and to those who hoped that the ECtHR would become more open to extraterritorial claims given the increased scarcity of such avenues post-Kiobel (thus, after the 2013 judgment of the US Supreme Court that limited the extraterritorial application of the Alien Tort Claims Act). The judgment concentrated on a specific issue: whether Switzerland was under an international law obligation to hear the applicant’s civil claim. It therefore did not deal with issues of immunity, positive (procedural) obligations under Article 3 ECHR, the specifics of universal criminal jurisdiction, the right to an effective remedy under Article 13 ECHR, or jurisdiction under Article 1 ECHR. In the end, the judgment affirmed the Chamber’s finding that States have an almost unlimited margin of appreciation regarding jurisdiction over civil claims concerning extraterritorial harms, even where those harms violate jus cogens.
This case put the Court in a difficult position: on the one hand, its judgment means that the applicant may never have his day in court or obtain judicial recognition of his ordeal, which is difficult to reconcile with the Court’s finding that “[e]veryone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal” (§ 113) and its mission to ensure rights that are ‘practical and effective’. On the other, obligating States to hear claims such as this one as a matter of obligation does not have an unambiguous basis in international law and could have far-reaching political and practical consequences for States (and thus also prove problematic for the Court).
Regardless of its choice, the Court’s judgment will have affected the formation of opinio juris with regard to universal civil jurisdiction. In this regard, it is pertinent to note the fear expressed by the dissenting Chamber judges that the Court’s reasoning would encourage States to reject universal civil jurisdiction. In this vein, Cedric Ryngaert, in his comment on the Chamber judgment, argued that the Chamber not only found that there was no obligation under international law to acknowledge universal civil jurisdiction, but even potentially undermined such an obligation by expressing doubts about its appropriateness and legality.
This has to some extent, although not entirely, been ameliorated by the Grand Chamber. The majority readily accepted the arguments put forth by the Swiss Government regarding the legitimate aim of its refusal of jurisdiction, including the practical difficulties involved. In his dissenting opinion, Judge Dedov provided a counter-point for each of these legitimate aim arguments, indicating that a discussion about their appropriateness took place in the deliberations. It is unfortunate that this is not reflected in the judgment, as the Court’s terse acceptance of the difficulties involved in the exercise of universal civil jurisdiction may indeed nourish doubts about its appropriateness and legality. Regarding the Jones case, which concerned the immunity of third States and their nationals from torture-related civil claims, Natasa Mavronicola wrote that the Court’s judgment “takes a position on the current state of international and human rights law which, in practice, significantly diminishes the prospect of legal accountability and redress for torture (…)”. It risked repeating this in Naït-Liman.
The Grand Chamber was clearly aware that its judgment could undermine torture victims’ access to redress: it doubly affirmed the “broad international consensus recognising the existence of a right for victims of acts of torture to obtain appropriate and effective compensation” (§§ 97 and 218), commended States that had opened their legal systems to victims of torture abroad and confirmed the principle of universal criminal jurisdiction (§ 178). In other words, while it considered that States are not under an obligation to provide for universal civil jurisdiction in torture cases, they are free to do so. Still, the Court did not go into the arguments about preventing impunity advanced by certain of the third-party interveners.
While this case was the first in which the Court engaged at such length with questions of universal civil jurisdiction for torture, it had already held previously in Jones that this issue was “far from settled” (§ 208). In Naït-Liman, the Court reached the same conclusion, albeit with more reasoning. The dissenting Chamber judges worried that, in doing so, the majority undermined the Court’s recognition of the prohibition of torture as jus cogens. The Grand Chamber majority does not see jurisdictional rules as conflicting with jus cogens here, and does not seem to have considered that severing the substance of the grievous alleged rights violations underlying the case from the procedural issues at hand was particularly problematic. This mirrors the approach taken by the ECtHR and the ICJ in past torture-related immunity cases, but nonetheless ties in to the debate on whether it is artificial, perilous and/or contradictory to consider the prohibition of torture to be absolute and non-derogable in substance without applying this status regarding questions of procedure, such as jurisdiction or immunity.
One other way to decide this case would have been to problematize the domestic courts’ finding that the case lacked a connection to Switzerland. Ryngaert argued that the Court mistakenly conflated establishing jurisdiction over the applicant – who, after all, has a connection to Switzerland – with acknowledging universal civil jurisdiction for all victims of torture. This critique was also expressed by the dissenting judges in both formations. However, the majority will have considered that, beyond a test of arbitrariness, such an approach would have required it to take a decidedly un-subsidiary, fourth-instance approach by reevaluating the Swiss authorities’ interpretation of domestic law.
The Grand Chamber’s approach to this case seems to have been to neither advance nor undermine torture victims’ access to civil remedies abroad. In other words, it seems to have tried to do as little as possible in this judgment, seeking a pragmatic solution to a challenging situation while maintaining the status quo so as to minimize the damage done to victims’ rights.
 Cedric Ryngaert, ‘From Universal Civil Jurisdiction to Forum of Necessity: Reflections on the Judgment of the European Court of Human Rights in Nait-Liman’ 100(3) Rivista di diritto internazionale (2017), 782-807, at 805.
 Ibid, at 783.
 Ibid, at 804.