Torture, Universal Civil Jurisdiction and Forum Necessitatis: Naït-Litman v. Switzerland before the ECtHR
On March 15 the ECtHR, sitting as the Grand Chamber,decided on the Naït-Litman v. Switzerland case (application no. 51357/07), against the applicant and his claim of violation of Article 6 ECHR. Independently on whether one agrees or not with the final outcome, for PIL lawyers and amateurs the judgment (for very busy people at least the press release) is certainly worth reading.
The case concerned the refusal by the Swiss courts to examine Mr Naït-Liman’s civil claim for compensation for the non-pecuniary damage arising from acts of torture allegedly inflicted on him in Tunisia. According to the applicant, he was arrested in April 1992 by the police in Italy, and after being transferred to the Tunisian consulate in Genoa, he was taken to Tunis by Tunisian agents. Mr Naït-Liman alleges that, from 24 April to 1 June 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. Following the alleged torture, Mr Naït-Liman fled Tunisia in 1993 for Switzerland, where he applied for political asylum; this was granted in 1995.
On 14 February 2001, having learnt that A.K. was being treated in a Swiss hospital, the applicant lodged a criminal complaint against him with the Principal Public Prosecutor for the Republic and the Canton of Geneva. He applied to join these proceedings as a civil party. The Prosecutor dropped the proceedings after finding out that A.K. had left the country some days earlier.
Several years later, on 8 July 2004, the applicant lodged a claim for damages with the Court of First Instance of the Republic and the Canton of Geneva against Tunisia and against A.K. The Court of First Instance declared the claim inadmissible on the ground 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. Mr Naït-Liman lodged an appeal with the Court of Justice of the Republic and the Canton of Geneva, which was rejected on the grounds of immunity from jurisdiction of the defendants. The Federal Supreme Court dismissed the second appeal in 2007, considering that the Swiss courts in any event lacked territorial jurisdiction.
The ECtHR considered that international law had not imposed an obligation on the Swiss authorities to open their courts with a view to ruling on the merits of Mr Naït-Liman’s compensation claim, on the basis of either universal civil jurisdiction in respect of acts of torture or a forum of necessity.
The case is without doubt of interest for CoL and beyond. To start with, the methodology employed by the Court is remarkable. A wide comparative legal analysis is conducted, which regarding universal civil jurisdiction encompasses the work of the Institute of International Law on the topic in 2015, and the report theretoby A. Bucher, and takes into account 39 member States of the Council of Europe (Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, the Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Turkey, Ukraine and the United Kingdom), as well as certain States which are not members of the Council of Europe. The forum necessitatis prong comprises: the works of both the Institute of International Law and the International Law Association -The Sofia Resolution, 2012, of its former Committee on International Civil Litigation and the Interests of the Public-; eleven European States (Austria, Belgium, Estonia, France, Germany, Luxembourg, the Netherlands, Norway, Poland, Portugal and Romania) which explicitly recognise either the forum of necessity, or a principle bearing another name but entailing very similar if not identical consequences (as in the case of France); Switzerland; and Canada (Quebec) as a non-member States of the Council of Europe. Finally, reference is also made to the forum necessitatis provisions in the EU maintenance, succession and matrimonial property regulations.
As to the merits, regarding universal civil jurisdiction the Strasbourg Court examined whether Switzerland was bound to recognise it for acts of torture by virtue of an international custom, or of treaty law. The Court concluded that those States which recognised universal civil jurisdiction beyond the acts of torture are currently the exception, hence evidence indicating the emergence of an international custom which would have obliged the Swiss courts to find that they had jurisdiction to examine Mr Naït-Liman’s action does not exist (and even less evidence of the consolidation of such custom). With regard to international treaty law, as it currently stands it also fails to recognise 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.
On the forum necessitatis issue, the Court had to determine whether international law imposed an obligation on the Swiss authorities to make a forum of necessity available to Mr Naït-Liman. In light of the materials alluded to above, the Court could not find an international custom rule enshrining the concept of forum of necessity; it further noted that no international treaty obligation imposes on the States a duty to provide for a forum of necessity.
It followed that the Swiss authorities had enjoyed a wide margin of appreciation in this area. After examining section 3 of the Federal Law on Private International Law and the decisions issued by the Swiss courts, the Court concluded that neither the Swiss legislature nor the Federal Supreme Court had exceeded their margin of appreciation.
It is worth noting that Judge Wojtyczek expressed a partly dissenting opinion; that Judge Dedov and Judge Serghides each expressed a dissenting opinion; and that, being aware of the dynamic nature of this area, the Court expressly refrained from ruling out the possibility of developments in the future. As a consequence the Court (para. 220) “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.”