European Court of Human Rights

GRAND CHAMBER

CASE OF NAÏT-LIMAN v. SWITZERLAND

(Application no. 51357/07)

JUDGMENT

STRASBOURG

15 March 2018

This judgment is final but it may be subject to editorial revision.

In the case of Naït-Liman v. Switzerland,

Guido Raimondi, President,
Angelika Nußberger,
Linos-Alexandre Sicilianos,
Ganna Yudkivska,
Helena Jäderblom,
Ledi Bianku,
Kristina Pardalos,
Helen Keller,
André Potocki,
Aleš Pejchal,
Krzysztof Wojtyczek,
Dmitry Dedov,
Yonko Grozev,
Pere Pastor Vilanova,
Pauliine Koskelo,
Georgios A. Serghides,
Tim Eicke, judges,
and Johan Callewaert, Deputy Grand Chamber Registrar,

PROCEDURE

(a) for the Government
Mr F. Schürmann, Head of the International Human Rights Protection Unit, Federal Office of Justice, Federal Department of Justice and Police,              Agent,
Mr N. Meier, Head of the Private International Law Section, Federal Office of Justice, Federal Department of Justice and Police,              Counsel
Ms C. Ehrich, lawyer, International Human Rights Protection Unit, Federal Office of Justice, Federal Department of Justice and Police,
Ms A. Begemann, lawyer, Diplomatic and Consular Law Unit, Public International Law Directorate, Federal Department of Foreign Affairs,
Advisers;

(b) for the applicant
MrP. Grant,
MrF. Membrez, Counsel.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The background to the present case

B. The criminal complaint against the Tunisian Minister of the Interior in office at the time of the alleged facts

C. The civil proceedings against the Minister of the Interior in office at the time of the alleged facts

"With regard to an action in tort based on the unlawful acts that were allegedly committed in Tunisia by the defendants, to the claimant's detriment, the Swiss courts do not have territorial jurisdiction under international law to examine the complaint, given that the defendants are not domiciled or habitually resident in Switzerland, and given also that no illegal act or detrimental outcome occurred in Switzerland, pursuant to sections 2 and 129 of the LDIP."

"All of the acts with regard to whose after-effects the claimant, a Tunisian national, seeks compensation for non-pecuniary damage, were allegedly inflicted on him, as he submits, in Tunisia in 1992, within the premises of the Tunisian Ministry of the Interior, by the Tunisian State and its officials. The mere fact that on account of those acts the claimant applied for and received political asylum in 1995 in Switzerland, where he has since been domiciled, does not, in itself and in the light of current case-law, amount to a sufficient connection enabling a forum of necessity to be established against the defendants in Switzerland and Geneva."

"As the outcome of the present appeal depends on the immunity from jurisdiction of the respondent parties, the question whether there exists a forum of necessity in the appellant's place of residence can, however, remain undecided."

D. The Federal Supreme Court's judgment of 22 May 2007

"It must first be considered whether the Swiss courts have jurisdiction to examine the action.

3.1 As Tunisia is not a party to the Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters (Lugano Convention, RS 0.275.11), there exists no convention rule between the two States governing the question of forum, which must therefore be examined in the light of the LDIP (sections 1(1)(a) and 1(2) LDIP).

3.2 In this instance, the jurisdiction of the Swiss authorities cannot be derived from the general rule concerning the international jurisdiction of the State of domicile of the defendant contained in section 2 of the LDIP, since the respondents are not domiciled in Switzerland. The cantonal court was, moreover, right in finding that the criteria, set out in section 129 of the LDIP, for establishing jurisdiction over actions in respect of wrongful acts were not met in so far as the defendants had neither their domicile nor their place of habitual residence or business in Switzerland (section 129(1) LDIP), and neither the wrongful act nor the resultant injury occurred in Switzerland (section 129(2) LDIP).

3.3 In the absence of an ordinary forum, the problem must be addressed under section 3 of the LDIP, which concerns the forum of necessity ... Under the latter provision, where no forum is provided for in Switzerland by the LDIP and where proceedings in another country prove impossible or one cannot reasonable require that they be brought in that country, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection have jurisdiction.

The application of this rule for assigning jurisdiction thus calls for three cumulative conditions to be met: firstly, the Swiss authorities do not have jurisdiction under another provision; secondly, legal proceedings in another country are impossible or cannot reasonably be required; and, thirdly, the case in question has a sufficient connection with Switzerland. In the present case, the first condition is indisputably fulfilled. Fulfilment of the second condition appears more problematic, but in the light of the third condition, which merits more extensive discussion, it is not necessary to elaborate further on this question.

3.4 Section 3 of the LDIP, which must be interpreted restrictively ... represents a safety valve, intended to avoid denials of justice ... in the event of a negative conflict of jurisdiction.

In this connection, the Federal Council, in its authoritative interpretation of this provision, noted that "there are cases that have such a tenuous connection with Switzerland that it is not appropriate to set in motion the entire judicial system in order to resolve them. However, section 3 lays down an exception to this principle. The Swiss authorities must assume jurisdiction even in cases where the connection with our country is very tenuous, where it is impossible to bring proceedings or to lodge an appeal abroad. It is for the claimant or the appellant to demonstrate this impossibility. Where this evidence has been adduced, jurisdiction reverts to the authority of the locality with which the case has a sufficient connection. Where there are several competing fora in Switzerland, it is the first authority before which an action is brought that has jurisdiction. Clearly, the impossibility of bringing and pursuing proceedings abroad can only be examined in the light of the tangible circumstances and of the possible consequences for the individual concerned in the particular case; it will ultimately be for the court to recognise, or not, its jurisdiction" .... .

Although section 3 LDIP may thus seem innately paradoxical in so far as proceedings for which there is no basis for connection with an ordinary forum in Switzerland are, ipso facto, lacking in any particular connection with this country, in such a way that determining a "sufficient connection" may prove challenging, and the aim pursued by the law - to prevent a formal denial of justice - difficult to achieve, this legal provision has not in practice been without effect; the cantonal courts in particular have recognised its applicability in the areas of family law, inheritance and proceedings on debt-enforcement and bankruptcy... .

Moreover, legal writers have noted that a subsidiary forum must necessarily be recognised in situations of political persecution... However, neither the case-law nor legal opinion provide much in the way of guidance concerning civil actions for compensation in respect of damage resulting from crimes against humanity, life and physical integrity, committed abroad, by foreign perpetrators.

3.5 That being stated, it is necessary to consider what is meant by "case" ["cause" in the French version] in section 3 LDIP.

It is settled case-law that the law must, in the first instance, be interpreted literally. An interpretation which deviates from the literal meaning of a text expressed in clear terms is allowable only where there are objective reasons for considering that the text fails to convey the true meaning of the provision concerned. Such reasons may derive from the drafting history, from the aim and sense of the provision concerned and from the structure and layout of the law. If the text is not absolutely clear, if it can be interpreted variously, the approach must be to seek out the true import of the provision having regard to all relevant factors, including in particular the drafting history, the intention pursued by the rule, the spirit and values on which it is based or again its relationship with other legal provisions. The Federal Supreme Court does not favour any one method of interpretation but adopts a pragmatic plurality in its search for the true meaning of the rule; in particular, it takes as a basis a literal understanding of the text only where this offers, with no ambiguity, a solution that is substantively just (ATF 133 III 175 § 3.3.1, V 57 § 6.1; 132 III 226 § 3.3.5 and the judgments cited therein).

In itself, the meaning to be attributed to the term "cause" is uncertain in the sense that it does not have a general definition in the laws of civil procedure of the French-speaking cantons (see, however, Bertossa/Gaillard/Guyet/ Schmidt, Commentaire de la loi de procedure civile genevoise, vol. I, Geneva 2002, n.10 ad Article 99/LPC/GE, concerning the force of res judicata, in which the authors consider that identical claims, in terms of their content, based on the same arguments and the same combination of alleged facts, constitute the objective limit of res judicata; that identity is determined by the complete set of legal considerations which formed part of the first application and were adjudicated upon; this was how "cause" was to be understood in former Article 99(2); the alleged facts of the case determine an overall situation ["Sachverhalt", "Prozessstoff"] which it is for the court to assess) but would appear to equate to "procédure" or "demande en justice" or in German to "Rechtsstreit", "Rechtssache", "Prozess", "Angelegenheit", "causa litigandi" or "Streitgrund". At all events, "cause" is not the literal and unambiguous translation of the terms "Sachverhalt" or "fattispecie" used in the German and Italian versions of section 3 of the LDIP. It should be borne in mind, at this point, that the latter terms are usually translated in French as "énoncé" or "exposé des faits" or "état des faits".

As the versions of the law drafted in the three official languages have the same standing, the question arises whether the difference between the French wording and that of the other two versions results from an error in the legislative process, from a difference in meaning which becomes apparent only in the context of specific cases according to a varying understanding of the legal provision in each of the languages, or, lastly, from a linguistic difference attributable either to the non-translatability knowingly taken into account in the drafting or to uncertainty on the part of the legislator as to the meaning to be conveyed (see Schubarth, Die Auslegung mehrsprachiger Gesetzestexte, in Rapports suisses présentés au XVIIe Congrès international de droit comparé, Zurich 2006, p. 11 et seq., especially p. 12 s.).

It seems clear that the first of these possibilities can be ruled out. To distinguish between the second and third possibilities the understanding of the term "cause" in legal French terminology must be considered. In this regard, the "cause" of the action is the basis of the claim ["base de la prétention"] ('Streitgrund" rather than "Sachverhalt"), though it should be noted that the legal writers are in some disagreement as to the content and scope of that basis. Some argue that the "cause" must be seen as a legal concept allowing the claim to be defined, while for others the "cause" comes down to a set of facts giving rise to the legal issues in debate or the legal interest invoked (see Vincent/Guinchard, Procédure civile, 24th edition, Paris 1996, n. 519 p. 386 et seq., who conclude that the "cause" of the action is constituted by a legally characterised set of facts).

In the case in point, it must be acknowledged that a comparison with the German and Italian versions assists in the interpretation of the French text, supporting the view that the term "cause" should be assigned the restricted meaning of "set of facts" or, to take a literal translation of "Sachverhalt" and "fattispeccie", "exposé" or "état de faits" and not "procédure". In other words, it is the "cause" - which concerns the set of facts and the legal argumentation - rather than the person of the applicant which must have a sufficient connection with Switzerland.

In the present case, however, the claimant complains of acts of torture that were allegedly committed in Tunisia, by Tunisians resident in Tunisia, against a Tunisian residing in Italy. All of the specific features of the case come back to Tunisia, except for the fact of residence in Italy at the relevant time. The facts of the case thus have no connection with Switzerland, so that the question of whether or not the link with this country is sufficient does not arise. In those circumstances, it is not possible to recognise the jurisdiction of the Swiss courts, short of disregarding the clear text of s[ection] 3 of the LDIP [see paragraph 37 below]. The fact that the claimant then chose to come to Switzerland cannot change anything, since it is a fact subsequent to the events of the case and, moreover, does not form part of it.

4. Since the absence of a sufficient connection between the facts of the case and Switzerland suffices to establish the Swiss courts' lack of jurisdiction, the appeal must be dismissed, without it being necessary to examine the issue of immunity from jurisdiction.

..."

E. Subsequent developments

"The State commits to implementing the transitional justice system in all areas within the timeline set by the related legislation. In this regard, no claim in respect of the non-retrospective nature of laws, or the existence of a previous amnesty or pardon, or the binding force of double jeopardy, or the statute of limitations or prescription of the crime or punishment, shall be admitted."

"[t]he compensation of victims of violations is a right guaranteed by law and the State shall offer every form of sufficient, effective redress commensurate with the extent of the violations committed and the individual situation of each victim."

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

Section 2 - In general

"Unless specially provided otherwise in this Act, the Swiss judicial or administrative authorities of the defendant's domicile shall have jurisdiction.

Section 3 - Forum of necessity

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.

Section 129 - Wrongful act

The Swiss courts of the domicile or, in the absence of domicile, those of the defendant's habitual residence or place of business shall have jurisdiction to examine actions based on a wrongful act.

Where the defendant has neither a domicile nor a place of habitual residence or place of business in Switzerland, the action may be brought before the Swiss court of the place in which the act took place or of its outcome.

Where several defendants can be found in Switzerland and where the claims are essentially based on the same legal and factual grounds, proceedings may be brought against all of them before the same court having jurisdiction; the first court to be seised has exclusive jurisdiction.

Section 133 - Applicable law

Where the perpetrator and the injured party have their habitual residence in the same State, the claims submitted in respect of a wrongful act shall be governed by the law of that State.

Where the perpetrator and the injured party do not have their habitual residence in the same State, those claims shall be governed by the law of the State in which the wrongful act was committed. However, if the result was produced in another State, the law of that State shall be applicable if the perpetrator ought to have foreseen that the result would be produced there.

Notwithstanding the preceding paragraphs, where a wrongful act violates a legal relationship between the perpetrator and the injured party, the claims submitted in respect of that act shall be governed by the law applicable to that legal relationship."

Article 41 - Conditions for liability

"A person who unlawfully causes damage to another, whether wilfully or through negligence or imprudence, is required to make reparation.

A person who intentionally causes damage to another by acting contrary to moral standards is also required to make reparation."

B. The preparatory work with regard to section 3 of the LDIP

213.3 Forum of necessity

"The draft law seeks to determine, in an exhaustive manner, the Swiss authorities' international jurisdiction. It follows that there is no international jurisdiction in Switzerland if this is not provided for in the draft law. The reasons for this are known. There are cases where the connection with Switzerland is so tenuous as not to justify setting in motion the whole machinery of justice in order to settle them. But section 3 provides for an exception to this principle. The Swiss authorities are bound to declare themselves competent even in cases presenting a highly tenuous connection with our country where it is impossible to bring an action or lodge an appeal abroad. It is for the applicant or the appellant to prove that impossibility. Where such proof has been adduced, jurisdiction lies with the authority at the place with which the facts have a sufficient connection. If there exist several competing fora in Switzerland, jurisdiction lies with the first authority seised.

Clearly, the impossibility of bringing and proceeding with an action abroad can be examined only in the light of the actual circumstances of the case and that of any consequences that may have arisen for the person concerned; ultimately, it will be for the court concerned to decide whether it has jurisdiction."

C. Domestic practice concerning section 3 of the LDIP

III. RELEVANT INTERNATIONAL LAW AND PRACTICE

A. The 1984 United Nations Convention against Torture

1. The relevant provisions

"1. For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity ..."

"1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

(c) When the victim is a national of that State if that State considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law."

Article 6

"1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts.

3. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.

Article 7

1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings."

"1. 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 the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law."

2. The travaux préparatoires in respect of Article 14 and the States' declarations at the time of ratification

"It is the understanding of the United States that Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of the State Party."

"The negotiating history of the Convention indicates that Article 14 requires a State to provide a private right of action for damages only for acts of torture committed in its territory, not for acts of torture occurring abroad. Article 14 was in fact adopted with express reference to 'the victim of an act of torture committed in any territory under its jurisdiction.' The italicized wording appears to have been deleted by mistake. This interpretation is confirmed by the absence of discussion of the issue, since the creation of a 'universal' right to sue would have been as controversial as was the creation of 'universal jurisdiction', if not more so." ('Summary and Analysis of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment' in Message from the President of the Unites States transmitting the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 20 May 1998 10th Congress, 2nd Session, reproduced in Nowak/McArthur, op. cit., pp. 460-61).

3. Practice of the United Nations Committee against Torture with regard to Article 14

"22. Under the Convention, States parties are required to prosecute or extradite alleged perpetrators of torture when they are found in any territory under its jurisdiction, and to adopt the necessary legislation to make this possible. The Committee considers that the application of article 14 is not limited to victims who were harmed in the territory of the State party or by or against nationals of the State party. The Committee has commended the efforts of States parties for providing civil remedies for victims who were subjected to torture or ill-treatment outside their territory. This is particularly important when a victim is unable to exercise the rights guaranteed under article 14 in the territory where the violation took place. Indeed, article 14 requires States parties to ensure that all victims of torture and ill-treatment are able to access remedy and obtain redress."

"38. States parties to the Convention have an obligation to ensure that the right to redress is effective. Specific obstacles that impede the enjoyment of the right to redress and prevent effective implementation of article 14 include, but are not limited to: inadequate national legislation, discrimination with regard to accessing complaints and investigation mechanisms and procedures for remedy and redress; inadequate measures for securing the custody of alleged perpetrators, State secrecy laws, evidential burdens and procedural requirements that interfere with the determination of the right to redress; statutes of limitations, amnesties and immunities; the failure to provide sufficient legal aid and protection measures for victims and witnesses; as well as the associated stigma, and the physical, psychological and other related effects of torture and ill-treatment. In addition, the failure of a State party to execute judgements providing reparative measures for a victim of torture, handed down by national, international or regional courts, constitutes a significant impediment to the right to redress. States parties should develop coordinated mechanisms to enable victims to execute judgements across State lines, including recognizing the validity of court orders from other States parties and assisting in locating the assets of perpetrators."

"6.6 With respect to (c) [the objection based on the Committee's lack of jurisdiction ratione personae], the Committee notes that the complainant's claims with regard to torture committed by Chilean authorities are ratione personae justiciable in Chile and in other States in whose territory General Pinochet may be found. However, to the extent that General Pinochet was not in Spain at the time of the submission of the communication, the Committee would consider that articles 13 and 14 of the Convention invoked by the complainant do not apply ratione personae to Spain. In particular, his 'right to complain to, and to have his case promptly and impartially examined by, [the] competent authorities', and his claim to compensation would be justiciable vis-à-vis the State responsible for the acts of torture, i.e. Chile, not Spain."

"6.3 The Committee notes the State party's argument that the communication is inadmissible ratione personae under article 22 of the Convention because the communication requires the Committee to consider whether China itself has violated article 14 by allegedly not providing an effective remedy to the complainant, and China has not made the declaration under article 22 of the Convention. The Committee also notes the complainant's assertion that article 14 applies irrespective of the places of the acts of torture; and that, because the Australian courts have not declined jurisdiction on the ground of forum non conveniens, the State party is required to afford an enforceable right to fair and adequate compensation. The Committee recalls its general comment No. 3 (2012) on the implementation of article 14 by States parties, in which it considers that 'the application of article 14 is not limited to victims who were harmed in the territory of the State party or by or against nationals of the State party' and that 'article 14 requires States parties to ensure that all victims of torture and ill-treatment are able to access remedy and obtain redress'. However, the Committee observes that, in the specific circumstances of this case, the State party is unable to establish jurisdiction over officials of another State for alleged acts committed outside the State party's territory. Accordingly, the Committee considers that, in the case under review, the complainant's claim to redress and compensation is inadmissible."

4. Academic opinion on Article 14

B. The 1951 United Nations Convention relating to the Status of Refugees

Article 16 - Access to courts

"1. A refugee shall have free access to the courts of law on the territory of all Contracting States.

2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.

3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence."

C. Resolution 60/147 of the General Assembly of the United Nations of 16 December 2005

Preamble

"The General Assembly,

...

Recognizing that, in honouring the victims' right to benefit from remedies and reparation, the international community keeps faith with the plight of victims, survivors and future human generations and reaffirms the international legal principles of accountability, justice and the rule of law,

Convinced that, in adopting a victim-oriented perspective, the international community affirms its human solidarity with victims of violations of international law, including violations of international human rights law and international humanitarian law, as well as with humanity at large, in accordance with the following Basic Principles and Guidelines,

Adopts the following Basic Principles and Guidelines:

...

II. Scope of the obligation [to respect, ensure respect for and implement international human rights law and international humanitarian law]

The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to:

...

(c) Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and

(d) Provide effective remedies to victims, including reparation, as described below.

...

VII. Victims' right to remedies

Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim's right to the following as provided for under international law:

(a) Equal and effective access to justice;

(b) Adequate, effective and prompt reparation for harm suffered;

(c) Access to relevant information concerning violations and reparation mechanisms.

VIII. Access to justice

A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law. Other remedies available to the victim include access to administrative and other bodies, as well as mechanisms, modalities and proceedings conducted in accordance with domestic law. Obligations arising under international law to secure the right to access justice and fair and impartial proceedings shall be reflected in domestic laws...

IX. Reparation for harm suffered

Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.

States should endeavour to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.

States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgements for reparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgements.

In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

..."

D. The work of the Institute of International Law on universal civil jurisdiction with regard to reparation for international crimes

Resolution

"The Institute of International Law,

Conscious that appropriate and effective reparation has to be provided for the harm suffered by the victims of international crimes;

Considering that "international crimes" means serious crimes under international law such as genocide, torture and other crimes against humanity, and war crimes;

Recalling that universal criminal jurisdiction is a means of preventing the commission of such crimes and to avoid their impunity, as affirmed in the 2005 Krakow Resolution on "universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes";

Noting that the prosecution of the authors of international crimes and their punishment provides only a partial satisfaction to the victims;

Considering that universal civil jurisdiction is a means of avoiding the deprivation of the victims of international crimes to obtain reparation of the harm suffered, in particular because the courts ordinarily having jurisdiction do not provide for an appropriate remedy;

Adopts the following Resolution:

Article 1

1. Victims of international crimes have a right to appropriate and effective reparation from persons liable for the injury.

2. They have a right to an effective access to justice to claim reparation.

3. These rights do not depend on any criminal conviction of the author of the crime.

Article 2

1. A court should exercise jurisdiction over claims for reparation by victims provided that:

(a) no other State has stronger connections with the claim, taking into account the connection with the victims and the defendants and the relevant facts and circumstances; or

(b) even though one or more other States have such stronger connections, such victims do not have available remedies in the courts of any such other State.

2. For the purposes of paragraph 1(b), courts shall be considered to provide an available remedy if they have jurisdiction and if they are capable of dealing with the claim in compliance with the requirements of due process and of providing remedies that afford appropriate and effective redress.

3. The court where claims for relief by victims have been brought should decline to entertain the claims or suspend the proceedings, in view of the circumstances, when the victims' claims have also been brought before:

(a) an international jurisdiction, such as the International Criminal Court;

(b) an authority for conciliation or indemnification established under international law; or

(c) the court of another State having stronger connections and available remedies within the meaning of the foregoing paragraphs.

Article 3

States should see that the legal and financial obstacles facing victims and their representatives are kept to a minimum in the course of procedures relating to claims for reparation.

Article 4

States should endeavour to develop procedures to allow groups of victims to present claims for reparation.

Article 5

The immunity of States should not deprive victims of their right to reparation.

Article 6

It is recommended that in the course of the preparation of an instrument on jurisdiction and enforcement of judgments in civil and commercial matters, in particular by the Hague Conference on Private International Law, the rights of victims as set out in these Articles be taken into account."

"65. ....the cited provisions do not define the connection that a victim must have with a State in order to be able to benefit from its system for reparation; equally, they do not indicate that even victims who have no connection with the territory of a State may apply in it for compensation in respect of acts of torture sustained elsewhere. Admittedly, it is evident that the obligation to put in place a compensation system lies on the State responsible for acts of torture, and on the State in which such acts were prepared or on the territory of which the torturers have attempted to obtain refuge. However, the system recommended by the Convention against Torture does not impose on a State an obligation to provide reparation in respect of acts having no connection with that State or for victims whose protection does not fall within its sphere of interest, whether that is expressed in terms of jurisdictional criteria, political stakes, or in any other manner. In other words, the Convention does not require that a State endow its courts with universal civil jurisdiction.

66. Moreover, we note that in Articles 5 to 8, the Convention against Torture defines its criminal scope in detail. This international criminal jurisdiction is not universal, although it might be thought that its effects appear to be so. However, even if this were correct, one cannot assign a similar scope to Article 14 on the obligation to provide redress, which is worded in terms that are significantly more general and thus less binding on the States Parties. Nor does this difference in the texts allow for the conclusion that the system for civil jurisdiction ought to be defined in parallel with the grounds for criminal jurisdiction; a mere affirmation that these two systems for redress would be complementary is insufficient to overcome the difference between them as that was intended by the authors of the Convention."

E. The relevant work of the Institute of International Law and the International Law Association on the forum of necessity

"188. The idea of accepting a forum of necessity with so many clarifications would require implementation at the level of private international law, whether national or international in source. As matters currently stand, it is not possible to derive such a solution from general international law. In particular, its adoption conflicts with the fact that the concept of a forum of necessity, like that of a denial of justice, is not generally accepted in the various legal systems..."

"189. Indeed, attention should be drawn to the lack of clarity surrounding use of the criterion of a 'sufficient connection' with the forum State or a "connection with the dispute', especially with regard to a provision as it exists in Switzerland and Quebec. Its indeterminacy creates a risk that it will be misunderstood and interpreted to the detriment of victims' legitimate interests. This has been confirmed by a judgment of the Swiss Federal Court, refusing to accept a forum of necessity in the case of a Tunisian national, resident with his family for ten years in Switzerland, where he had obtained political asylum, and who was claiming reparation for non-pecuniary damage from the Republic of Tunisia on account of torture experienced in the premises of the Ministry of the Interior in Tunisia in 1992; at the end of a purely literal interpretation, it was concluded that the forum of necessity could not be recognised, since it required a sufficient connection with the "facts of the case", while the connection with the claimant's person was not decisive."

(1) Scope

"1.1 These Guidelines apply to civil claims against corporations, individuals and other non-State actors arising out of or brought to redress conduct constituting a human rights violation, in view of the nature of the norm allegedly violated or the gross or systematic nature of the breach alleged."

2.3. Forum of necessity

"2.3(1) The courts of any State with a sufficient connection to the dispute shall have jurisdiction in order to avert a denial of justice.

2.3(2) A denial of justice in the sense of paragraph 2.3(1) occurs if the court concludes upon hearing all interested parties, and after taking account of reliable public sources of information, that:

(a) no other court is available; or

(b) the claimant cannot reasonably be expected to seize another court.

2.3(3) A sufficient connection in the sense of paragraph 2.3(1) consists in particular in:

(a) the presence of the claimant;

(b) the nationality of the claimant or the defendant;

(c) the presence of assets of the defendant;

(d) some activity of the defendant; or

(e) a civil claim based on an act giving rise to criminal proceedings in the court seized of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings."

IV. COMPARATIVE-LAW MATERIAL

A. Universal jurisdiction for civil actions to obtain compensation for damage sustained as a result of torture

1. Council of Europe member States

2. Non-member States of the Council of Europe

"An individual who, under actual or apparent authority, or color of law, of any foreign nation subjects an individual to torture shall, in a civil action, be liable for damages to that individual..." (section 2 (a) § 1).

"We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. '[T]here is no clear indication of extraterritoriality here,' Morrison, 561 U. S., at ___ (slip op., at 16), and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred.

IV

On these facts, all the relevant conduct took place out­side the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17-�24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required."

3. Possibility of joining criminal proceedings as a civil party

B. The forum of necessity

1. Geographical scope

2. Applicability ratione materiae

3. Conditions of application

88. As to the conditions of application of the forum of necessity, the Court observes that in all the States which recognise this principle - whether it has been established by case-law or codified by the legislature - its application is always subject to two cumulative conditions, namely, the de facto or de jure impossibility of bringing the dispute before the courts of another State, and the existence of at least a certain proximity (or at least a certain connection) between the dispute and the State of the forum applied to.

4. Distinction between forum of necessity and forum non conveniens

V. EUROPEAN UNION LAW

Article 11 - Forum necessitatis

"Where no court of a Member State has jurisdiction pursuant to other provisions of this Regulation, the courts of a Member State may, on an exceptional basis, rule on the succession if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the case is closely connected.

The case must have a sufficient connection with the Member State of the court seised."

THE LAW

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

"1. In the 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..."

A. The nature and scope of the dispute

"As a matter of logic, the second ground should be addressed only once there has been a determination in respect of the first, since it is only where a State has jurisdiction under international law in relation to a particular matter that there can be any question of immunities in regard to the exercise of that jurisdiction."

B. Applicability of Article 6 of the Convention

"In the present case, the applicant had based his claim on Article 82 et seq. of the Tunisian Code of Obligations and Contracts, which he considered applicable under section 133 al. 2 of the LDIP. The Court further observes that similar provisions providing for civil liability in respect of an unlawful act, applicable, inter alia, to acts adversely affecting a person's physical or moral integrity, exist in Swiss law, particularly in Articles 41 et seq. of the Code of Obligations ... The restricted interpretation given by the Federal Court to the concept of the forum of necessity does not represent an obstacle to the application of Article 6 § 1 to the present case (see, mutatis mutandis, Al-Adsani, cited above, §§ 46-�49, and Jones and Others v. the United Kingdom, nos. 34356/06 and 40525/06, 14 January 2014, § 164). As this provision is therefore applicable in the present case, the objection that the application is incompatible with the provisions of the Convention must be rejected."

C. Merits

1. The principles governing the right of access to a court

2. Application of these principles in the present case

a. Did the restriction on the applicant's right of access to a court pursue a legitimate aim?

i. The Chamber judgment

ii. The parties' submissions to the Grand Chamber

(α) The applicant

(β) The Government

iii. The Court's assessment

b. Was the restriction proportionate?

i. The Chamber judgment

ii The parties' submissions to the Grand Chamber

(α) The applicant

(β) The Government

iii Third-party observations

(α) The United Kingdom

(β) Amnesty International and the International Commission of Jurists

"This application of the ATS [Alien Tort Statute] is consistent with the growing recognition in the international community that an effective remedy for repugnant crimes in violation of fundamental human rights includes, as an essential component, civil reparations to the victims ... This principle undisputedly applies to those States, including those within the European Union, that currently permit victims of crime to seek monetary compensation in actions civiles within criminal proceedings based on universal jurisdiction. Similarly, outside the European Union, numerous States around the world permit civil claims to be brought within criminal proceedings based on torts committed abroad."

(γ) Redress Trust and the OMCT

(δ) Citizens' Watch

iv The Court's assessment

(α) Relevant international law and the resulting margin of appreciation in the present case

- Whether the Swiss authorities were obliged to open their courts to the applicant by virtue of universal civil jurisdiction for acts of torture

- Whether the Swiss authorities were obliged to open their courts to the applicant by virtue of the forum of necessity

- The scope of the margin of appreciation in the present case

(β) Whether the Swiss authorities exceeded their margin of appreciation in the present case

(γ) General conclusion

FOR THESE REASONS, THE COURT

1. Holds, by sixteen votes to one, that Article 6 § 1 is applicable in the present case;

2. Holds, by fifteen votes to two, that there has been no violation of Article 6 § 1 of the Convention.

Done in English and French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 15 March 2018.

Johan CallewaertGuido Raimondi
Deputy to the RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

G.R.
J.C.

PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK

(Translation)

"Inside its territory, the State conducts itself normally as a sovereign power and the entirety of its jurisdiction is traditionally designated by the expression 'territorial sovereignty' or 'principal territorial jurisdiction'.

Outside its territory, the jurisdiction accorded to a State by international law is based on various titles." (P. Dailler, M. Forteau, A. Pellet, Droit international public, Paris, LGDJ, 2009, p. 513)

"... a principle of substantial and genuine connection between the subject-matter of jurisdiction, and the territorial base and reasonable interests of the jurisdiction sought to be exercised, should be observed." (I. Brownlie, Principles of Public International Law, Oxford, Oxford University Press, 2008, p. 299)

"The State with the strongest nexus to a situation is entitled to exercise jurisdiction, yet if it fails to adequately do so another State with a weaker nexus (and in the case of violations of jus cogens without a nexus) may step up, provided that its exercise of jurisdiction serves the global interest." (Jurisdiction in International Law, Oxford, Oxford University Press, 2015, p. 231)

"the State does not enjoy a freedom of unlimited international action and can act only under a title of jurisdiction defined by public international law" (op. cit., p. 562).

"'Jurisdiction' is the power of an entity or an institution to rule on a question of law arising in a particular case in the form of a disagreement or a dispute."

Obligation to respect human rights

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."

"In view of the above, the Court concludes that international law did not oblige the Swiss authorities to open their courts to the applicant pursuant to universal civil jurisdiction for acts of torture."

"108. The Court also considers that the applicant can lay claim to a right which is, at least on arguable grounds, recognised under Swiss law ...

109. As to whether the States Parties to that instrument are obliged to guarantee this right even for acts of torture that were inflicted outside their territories by foreign officials, as the applicant submits, the Court considers that this question goes to the substance of the present case, which will be examined below (see paragraphs 112 et seq.). Nevertheless, it is not decisive for the applicability of Article 6.

110. The Court concludes from this that the right of victims of acts of torture to obtain compensation is today recognised in Swiss law. Moreover, it is not in dispute between the parties that this right is a civil one.

111. In view of the foregoing, Article 6 § 1 of the Convention is applicable in the present case."

"The fact that the respondent State does not actually contest the existence of a right of victims of torture to obtain compensation, but rather its extra-territorial application, is immaterial, given that the dispute may relate not only to the actual existence of a right but also to its scope and the manner of its exercise (see Benthem v. the Netherlands, 23 October 1985, § 32, Series A no. 97)."

"114. However, the right of access to a court is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, which enjoys a certain margin of appreciation in this regard ... . That being stated, those limitations must not restrict or reduce a person's access in such a way or to such an extent that the very essence of the right is impaired...

115. In addition, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved ..."

DISSENTING OPINION OF JUDGE DEDOV

Some preliminary general remarks

Singularities

The case-law

Effective remedy

Positivism as a dark side of international law

Consensus and margin of appreciation

Article 6 is a very special right

DISSENTING OPINION OF JUDGE SERGHIDES

"Surely it is arbitrary or at least manifestly unreasonable, where a State makes provision for a forum of necessity, that that State should limit the right of access to a court, implicitly protected by Article 6 § 1 of the Convention, in the case of a victim of torture wishing to obtain civil redress for the harm caused by the acts in question, by giving a restrictive interpretation of the criterion of a 'sufficient connection' with that State under which such a connection may arise only out of the set of facts that gave rise to the harm (the acts of torture) rather than out of the procedure as a whole, when the same State would allow the same victim to rely on his civil claims in the context of criminal proceedings?"[3]

"The answer ... will in practice concern in very many cases the sole means available to torture survivors of obtaining some semblance of justice and a measure of reparation for the harm endured."

I. Has there been a denial of justice to the applicant, in breach of Article 6 § 1 of the Convention?

(a) Whether section 3 of the LDIP was interpreted and applied by the Federal Supreme Court in an arbitrary and manifestly unreasonable manner

"Section 3 - Forum of necessity

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."

"Section 129 - Wrongful act

[1] The Swiss courts of the domicile or, in the absence of domicile, those of the defendant's habitual residence or place of business shall have jurisdiction to examine actions based on a wrongful act.

[2] Where the defendant has neither a domicile nor a place of habitual residence or place of business in Switzerland, the action may be brought before the Swiss court of the place in which the act took place or of its outcome.

..."

"The right of effective access also supposes that there is a 'coherent system' governing recourse to the courts that is sufficiently certain in its requirements for litigants to have 'a clear, practical and effective opportunity' to go to court. A number of cases in which uncertainty in the law or its application has led litigants to act in a way that has prejudiced their access to a court have been decided in their favour on this basis."[21]

"The right of access also requires that procedural requirements governing recourse to the courts that are open to more than one interpretation should not be given a 'particularly strict' interpretation or application, so as to prevent litigants making use of an available remedy."[22]

"134. The Court reiterates that the Convention is an instrument for the protection of human rights and that it is of crucial importance that it is interpreted and applied in a manner that renders these rights practical and effective, not theoretical and illusory. This concerns not only the interpretation of substantive provisions of the Convention, but also procedural provisions; it impacts on the obligations imposed on Governments, but also has effects on the position of applicants."

(b) Whether section 3 of the LDIP was restrictively interpreted and applied by the Federal Supreme Court, and whether, in this connection, there are further grounds indicating that section 3 was interpreted in an arbitrary and manifestly unreasonable manner

"... those limitations must not restrict or reduce a person's access in such a way or to such an extent that the very essence of the right is impaired ..."

"... the Federal Supreme Court chose, in its judgment of 22 May 2007, a restrictive interpretation, although there was nothing, either in the law, or the case-law, or the legal writings, forcing it to do so. In our opinion, the Federal [Supreme] Court denied the applicant justice."

"In this regard, the Federal Council observed, in an authentic interpretation of that provision that 'there are cases where the connection with Switzerland is so tenuous as not to justify setting in motion the whole machinery of justice in order to settle them. But Article 3 provides for an exception to this principle. The Swiss authorities are bound to declare themselves competent even in cases presenting a highly tenuous connection with our country where it is impossible to bring an action or lodge an appeal abroad' (... see also: Message concerning a law on private international law, Feuille federal 1983 I 290)."[36]

"52. Having thus drawn attention to the legislator's intention, and having even conceded that the provision concerned 'constitutes a safety valve designed to prevent denials of justice in the event of a negative conflict of jurisdiction', the Federal Supreme Court nevertheless went on to depart from this approach in indicating that 'Article 3 LDIP must be interpreted restrictively' (para. 3.4) and denying the existence of a sufficient connection between the applicant and Switzerland."

"6. The question which concerns us in the present case is whether the Federal [Supreme] Court's decision dismissing the applicant's claim on the basis of section 3 of the Federal Law on Private International Law was compatible with the right of access to a court guaranteed by Article 6 § 1 of the Convention or whether that restriction was disproportionate to the aim pursued.

7. The [Federal] Supreme Court rejected the application of the principle of the forum of necessity on the ground that there was not a sufficient connection, by interpreting the above-cited section 3 in a very restrictive manner. Yet, according to that section, the existence, in itself, of 'a sufficient connection' would enable the forum of necessity to be applied in favour of the applicant. Although it cites the Federal Council's interpretation of that provision (see paragraph 22 of the judgment, point 3.4 of the Federal [Supreme] Court's decision) and refers to the legal writings which argue that the forum of necessity must be recognised, in particular, in situations of political persecution, the Federal Supreme Court chose, in its judgment of 22 May 2007, a restrictive interpretation, although there was nothing, either in the law, or the case-law, or the legal writings, forcing it to do so. In our opinion, the Federal [Supreme] Court denied the applicant justice.

8. The applicant fled to Switzerland in 1992 [correct year 1993][42] and was granted political asylum on 8 November 1995. He obtained Swiss citizenship through naturalisation following a favourable opinion issued on 6 November 2006 by the Canton of Geneva, endorsed by authorisation from the Federal Migration Office dated 21 May 2007, and his naturalisation was confirmed on 25 May 2007 by the Versoix Municipal Council.

9. We wish to draw attention to the date of the Federal [Supreme] Court's judgment, that is, 22 May 2007, which ruled that there was not a sufficient link between the applicant's case and Switzerland! In this regard, we would again point out that the Federal Migration Office authorised the applicant's naturalisation one day prior to the Federal [Supreme] Court's judgment, that is on 21 May 2007, and that the only procedure that occurred subsequent to that date was the confirmation by the Town of Versoix on 25 May 2007. The applicant had been resident in Switzerland for eleven and a half years at the time that the Federal [Supreme] Court delivered its judgment on 22 May 2007, and he obtained Swiss nationality on 25 May 2007, with prior authorisation of which the Federal Supreme Court could not have been unaware, since it was dated 21 May 2007, or one day before that court's decision.

10. The applicant's place of residence, refugee status, the naturalisation procedure with the favourable opinion of 2006 and the authorisation of 21 May 2007, taken together with the presence in Swiss territory of the person suspected of having committed the alleged acts of torture, that is, under the jurisdiction of the State concerned, enabled a sufficiently strong connection to be established in order to apply section 3 of the Federal Law on Private International Law and to examine the applicant's claim on its merits.

11. In the light of the above, the Federal [Supreme] Court's interpretation of this provision in the present case is arbitrary and manifestly unreasonable."

"1. A court action. 2. A legal dispute. 3. The arguments, collectively, put forward by either side in a court action. 4. (action on the case) A form of action abolished by the Judicature Acts 1873-75".[46]

"19. 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 ..., for severe bodily injury, illegal confinement, insults, causing danger to health, coercion and abuse of authority. The applicant applied to join these proceedings as a civil party seeking damages.

20. On the same date the Principal Public Prosecutor transmitted to the head of the security police, by internal mail, a request to 'attempt to locate and identify the accused individual, who [was] supposedly hospitalised in the Geneva University Hospital, for heart surgery' and 'if possible, to arrest him and bring him before an investigating judge'. On receipt of this request, the police immediately contacted the hospital, which informed them that A.K. had indeed been a patient there, but that he had already left the hospital on 11 February 2001.

21. On 19 February 2001 the Principal Public Prosecutor made an order discontinuing the proceedings on the grounds that A.K. had left Switzerland and that the police had been unable to arrest him..."

"13. The domestic courts, together with the majority of the Chamber, have thus neglected the Swiss authorities' failure to take account of the criminal complaint lodged by the applicant against the suspect, although the latter was at that time present in Switzerland.

14. From the moment that the individual suspected of having committed the acts of torture complained of had spent time in Switzerland, the State's international obligations came into play and the domestic courts thus had jurisdiction for bringing criminal proceedings, during which functional immunity could not be relied on in respect of torture."

"Unless specially provided otherwise in this Act, the Swiss judicial or administrative authorities of the defendant's domicile shall have jurisdiction."

"There is a general consensus that the required connection exists at least when the plaintiff is domiciled or habitually resident in the forum State, or even when he is a citizen of that State".

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."

"3. The Assembly draft had extended the benefits of the Convention to 'all persons residing within the territories of the signatory States'. It seemed to the Committee that the term 'residing' might be considered too restrictive. It was felt that there were good grounds for extending the benefits of the Convention to all persons in the territories of a signatory States, even those who could not be considered as residing there in the legal sense of the word. This word, moreover, has not the same meaning in all national laws. The Committee therefore replaced the term 'residing' by the words 'within their jurisdiction' which are also contained in Article 2 of the Draft Covenant of the United Nations Commission."[50]

"The authorities of the Contracting Parties are obliged to secure to everyone within their jurisdiction the rights and freedoms guaranteed in the ECHR, as Article 1 ECHR prescribes. If a litigant of another Contracting Party or a third country brings proceedings before a court of one of the Contracting Parties, the decision of that court to either assert jurisdiction or not, based on the forum's jurisdictional rules, has to be in line with the ECHR. The moment the foreign litigant brings proceedings in a court of one of the Contracting Parties, he or she is within the jurisdiction of that Contracting Party in the sense of Article 1 ECHR. The jurisdictional rules of the forum cannot limit the applicability of the ECHR in this regard. If this were different, the right of access to a court would become meaningless.

The Court seemingly confirmed this stance in Markovic and Others v. Italy. ... The applicants in Markovic were all citizens of Serbia and Montenegro (not a Contracting Party at the time) who had initiated civil proceedings for damages in Italy against Italy on behalf of relatives who had died in the aforementioned attack. However, the Italians courts held that they had not jurisdiction to hear the case, as - in short - the impugned acts, acts of war were not open to judicial review. In this case a number of interesting issues relating to both Article 1 and Article 6 ECHR were raised. One was whether the applicants came within the jurisdiction of Italy within the meaning of Article 1 ECHR. The Court held on this issue that while the extraterritorial nature of the events which allegedly underlay the applicant's action for damages may have an impact on the applicability of Article 6 ECHR and the outcome of the proceedings, it is beyond dispute that this does not affect the jurisdiction ratione loci and ratione personae of the respondent State. The Court came to the following conclusion, which would appear to leave little doubt:

'If civil proceedings are brought in the domestic courts, the State is required by Article 1 of the Convention to secure in those proceedings respect for the rights protected by Article 6 [ECHR]. The Court considers that, once a person brings a civil action in the courts or tribunals of a State, there indisputably exists, without prejudice to the outcome of the proceedings, a 'jurisdictional link' for the purposes of Article 1 [ECHR]'.

This, of course does not mean that courts of Contracting Parties would have to assert jurisdiction in the private international law sense in all cases. As will be further discussed below, Article 6(1) ECHR, the right of access to a court, requires regulation by the State and is therefore inherently limited. Such limitation may be allowed under Article 6(1) ECHR. The (courts of the) Contracting Parties cannot simply dismiss the invocation of Article 6(1) ECHR in this regard by finding that they have no jurisdiction in the private international law sense and by concluding that the ECHR therefore does not apply."[53]

"1. 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 ...."

"1. A refugee shall have free access to the courts of law on the territory of all Contracting States ...."

II. My disagreement with the judgment's approach

(a) Legitimate aim

"It should be noted, above all that the applicant is not in any way asking Switzerland to repair the harm but simply that it should make its judicial system available in order that the person directly responsible for the acts of torture endured be required to make reparation for the consequences of his acts." (emphasis in the original text)

"113. It can thus be seen that the Court, in its decisions over several decades on the civil limb of Article 6 of the Convention, has very extensively expanded litigants' access to the courts. In none of the cases referred to was the argument of the additional burden on the courts invoked, still less did such an argument prevail[s]." (emphasis in the original text)

"116. And finally, the argument of an excessive burden of work loses any remaining value and relevance when it is considered that Switzerland already allows the victims of international crimes perpetrated abroad to lodge civil claims in the framework of criminal proceedings." (emphasis in the original text)

"If perpetrators feel safe in the jurisdiction where they enjoy powerful positions or otherwise shielded from domestic court proceedings against them, civil and/or criminal, they can still be brought to account in other jurisdictions. Sometimes, civil proceedings are more effective than criminal proceedings in pursuing the objective or eradicating impunity, as they unequivocally 'set price' of human rights violations and prevent violators from enjoying fruits of their crimes."

(b) Proportionality test

"Proportionality requires the decision dealing with conflicting interests to combine in a harmonious whole the appropriateness of the means selected to achieve the objective. In order to be proportional a decision should, not only be adequate to achieve its objective; it should also avoid a burden from being imposed [on] others without legitimate reason."[63] (emphasis added).

Swiss authorities to open their courts to the applicant pursuant to universal civil jurisdiction for acts of torture" (see paragraph 198 of the judgment). At the end of the judgment (see paragraph 220), the Court, based "on the dynamic nature of this area", "does not rule out the possibility of developments in the future", and "... invites the State Parties to the Convention to take account [... ] of any developments facilitating effective implementation of the right to compensation for acts of torture ..."

"The forum of necessity doctrine recognises that there will be exceptional cases where, despite the absence of a real and substantial connection, the need to ensure access to justice will justify the assumption of jurisdiction. The forum of necessity doctrine does not redefine real and substantial connection to embrace 'forum of last resort' cases; it operates as an exception to the real and substantial connection test. Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction. In my view, the overriding concern for access to justice that motivates the assumption of jurisdiction despite inadequate connection with the forum should be accommodated by explicit recognition of the forum of necessity exception rather than by distorting the real and substantial connection test".

III. Conclusion