Naït-Liman v Switzerland (European Court of Human Rights, Grand Chamber, Application no. 51357/07, 15 March 2018)
The Grand Chamber of the European Court of Human Rights (the ‘Court’) held that a Swiss court’s decision to refuse jurisdiction to hear a claim did not violate rights of access to a court. The claimant, a Swiss national, had sought compensation for torture inflicted by the Tunisian Republic.
In 1992, Mr Naït-Liman, a Tunisian national who resided in Italy, was arrested by Italian police and removed to Tunisia. In Tunisia, on the orders of the Minister of the Interior, Mr Naït-Liman was arbitrarily detained and tortured. In 1993, Mr Naït-Liman fled Tunisia to Switzerland, where he was granted asylum in 1995.
Following an unsuccessful attempt at bringing criminal proceedings against the Minister, in 2003, Mr Naït-Liman commenced a civil action in the Court of First Instance against the Minister and the Tunisian Republic seeking compensation for non-pecuniary damages arising out of the torture inflicted in Tunisia.
The Court of First Instance held Mr Naït-Liman’s claim was inadmissible because Swiss courts do not have territorial jurisdiction under international law to examine such a complaint. After a series of unsuccessful appeals, Mr Naït-Liman appealed to the Court, claiming that the decision by the Swiss courts not to exercise jurisdiction was a violation of his right of access to a court within the meaning of Article 6 § 1 of the European Convention on Human Rights (the ‘Convention’). Article 6 § 1 relevantly states:
“In determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Court held that the right of victims of acts of torture to obtain compensation as contemplated under Article 6 § 1 of the Convention was recognised under Swiss law, but that the right itself was not absolute. The Court noted that the right of access to court may be subject to limitations provided that:
a) the limitations pursue a legitimate aim; and
b) the limitations are proportionate.
Was there a legitimate aim?
The Swiss government argued that restricting the right of access of court by refusing jurisdiction was in pursuit of legitimate aims. The Court agreed with the Swiss government’s arguments and held that refusing jurisdiction due to a desire to discourage ‘forum shopping’, and in consideration of the difficulties with enforcing judgments and gathering evidence, were each legitimate aims.
Were the limitations proportionate?
First, the Court concluded that international law did not oblige the Swiss courts to exercise jurisdiction. The Court reasoned that any obligation to hear Mr Naït-Liman’s claim would have arisen pursuant to the principles of universal civil jurisdiction or forum of necessity. However, the Court rejected the notion that the principles of universal civil jurisdiction or forum of necessity had precedent in international custom or had recognition under international treaty law. On this basis, the Court held that an obligation to hear Mr Naït-Liman’s claim did not arise.
Secondly, acknowledging that the lack of international precedent afforded the Swiss courts a large margin of appreciation, the Court considered whether refusing to exercise jurisdiction overstepped that margin. This required the Court to consider the relevant domestic forum of necessity provisions. Section 3 of the Federal Act on Private International Law of 18 December 1987, states:
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 administration authorities of the locality with which the case has a sufficient connection shall have jurisdiction.
The Court agreed with the Federal Supreme Court’s interpretation that the word “case” in section 3 refers to the relevant set of facts, and not to the individual bringing the claim. Consequently, the Court held that to have evoked section 3, a sufficient connection between the set of alleged facts and Switzerland must have been established. As Naït-Liman’s claim concerned acts committed in Tunisia, by Tunisian residents, against a Tunisian man, the Court concluded that the Swiss courts were justified in refusing to exercise jurisdiction.
The case is concerning for victims of human rights abuses who seek civil remedies under international law. In condoning Switzerland’s decision to refuse jurisdiction, the Court has confirmed that countries are not obliged to entertain claims that would otherwise arise under universal civil jurisdiction or by virtue of forum of necessity laws.
Perhaps providing some ‘silver lining’, however, the Court itself appeared to address the potential ill-effects of its decision, suggesting that States should consider obliging courts to provide access to compensation in cases of this kind by endowing them with jurisdiction:
“…it 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.
…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.”
The full text of the decision can be found here.
Jessica Terrill is a Solicitor at King & Wood Mallesons.