CASE OF NAÏT-LIMAN v. SWITZERLAND

1. The case originated in an application (no. 51357/07) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tunisian national who has acquired Swiss nationality, Mr Abdennacer Naït-Liman (“the applicant”), on 20 November 2007.
2. Relying on Article 6 § 1 of the Convention, the applicant alleged that the refusal by the Swiss civil courts to examine his civil claim for compensation in respect of the non-pecuniary damage caused by the alleged acts of torture, inflicted in Tunisia, had infringed his right of access to a court.
3. The application was allocated to the Second Section of the Court, in accordance with Rule 52 § 1 of the Rules of Court (“the Rules”).
4. On 30 November 2010 the application was communicated to the Government.
5. The Redress Trust and the World Organisation against Torture (“the OMTC” ), the latter being represented by the former, were given leave to intervene in the written procedure, in accordance with Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules.
6. On 21 June 2016 a Chamber of that Section, composed of Işıl Karakaş, President, Nebojša Vučinić, Helen Keller, Paul Lemmens, Egidijus Kūris, Robert Spano and Jon Fridrik Kjølbro, judges, and also of Stanley Naismith, Section Registrar, unanimously declared the application admissible and held, by four votes to three, that there had been no violation of Article 6 of the Convention. The concurring opinion of Judge Lemmens and the joint dissenting opinion of judges Karakaş, Vučinić and Kūris were annexed to the Chamber judgment.
7. On 19 September 2016 the applicant requested that the case be referred to the Grand Chamber under Article 43 of the Convention. On 28 November 2016 a panel of the Grand Chamber accepted the request.
8. The composition of the Grand Chamber was determined in accordance with Article 26 §§ 4 and 5 of the Convention and Rule 24.
9. The applicant and the Government each filed written observations (Rules 59 § 1 and 71 § 1).
10. Observations were also received from the UK Government, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). In addition, observations were received from the Redress Trust jointly with the OMCT, from Amnesty International jointly with the International Commission of Jurists, and from Citizens ’ Watch. The parties replied to these observations in the course of their oral submissions at the hearing (Rule 44 § 6).
11. A hearing took place in public in the Human Rights Building, Strasbourg, on 14 June 2017 (Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMr 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, CounselMs 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 applicantMr P. Grant, Mr F. Membrez, Counsel.
The Court heard addresses by Mr Grant, Mr Membrez and Mr Schürmann and replies by Mr Membrez, Mr Grant and Mr Schürmann and Mr Meier to questions put by the judges.
I. THE CIRCUMSTANCES OF THE CASE
12. The applicant was born in 1962 in Jendouba, in the Tunisian Republic (“Tunisia”), and lives in Versoix in the Canton of Geneva.
13. The facts of the case, as submitted by the parties, may be summarised as follows.
A. The background to the present case
14. According to the applicant, on 22 April 1992 he was arrested by the Italian police at his place of residence in Italy and taken to the Tunisian Consulate in Genoa, where he was presented with a bill of indictment stating that he represented a threat to Italian State Security. He alleges that he was then taken to Tunis by Tunisian officials. By his own account, he has never instituted proceedings against the Italian authorities in respect of those events.
15. The applicant further submits that he was arbitrarily detained and tortured in Tunis in the premises of the Ministry of the Interior, from 24 April to 1 June 1992, on the orders of A.K., the then Minister of the Interior. He submits that he was subjected to the so-called “roast chicken” position throughout the entire period of detention and deprived of his basic physiological needs, particularly sleep; he was also beaten on the soles of his feet with a baseball bat and struck all over his body with telephone cords.
16. The applicant submits that he suffers from a series of physical and psychological injuries and disorders.
17. After having been subjected to the alleged torture in Tunisia in 1992, the applicant fled that country in 1993 and took refuge in Switzerland, where he applied for asylum in the same year. The applicant has since been living in the Canton of Geneva.
18. On 8 November 1995 the Swiss authorities granted the applicant asylum.
B. The criminal complaint against the Tunisian Minister of the Interior in office at the time of the alleged facts
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 (“the Principal Public Prosecutor”), 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. This decision to discontinue the proceedings was not challenged by the applicant.
C. The civil proceedings against the Minister of the Interior in office at the time of the alleged facts
22. By his own account, on 22 July 2003 the applicant asked a Tunisian lawyer to represent him with a view to bringing a civil action for compensation against A.K. and the Tunisian Republic. On 28 July 2003 the lawyer informed the applicant that this type of action had never been successful and advised him not to lodge such a claim. It was allegedly impossible to lodge a civil action of this sort in Tunisia.
23. By a writ dated 8 July 2004, the applicant lodged a claim for damages with the Court of First Instance of the Republic and the Canton of Geneva (“the Court of First Instance”) against Tunisia and against A.K. He claimed 200,000 Swiss francs (CHF), with 5% interest from 1 June 1992, as compensation in respect of the non-pecuniary damage arising from the acts of torture to which he had allegedly been subjected. The applicant submitted that the conditions for reparation of non-pecuniary damage provided for by Articles 82 et seq. of the Tunisian Code of Obligations and Contracts, applicable under section 133 (2) of the Federal Law on Private International Law ( Loi fédérale sur le droit international privé, the LDIP, see paragraph 37 below), had been met.
24. On 9 June 2005 a hearing was held before the Court of First Instance; neither of the defendants was in attendance or represented.
25. By a judgment of 15 September 2005, the Court of First Instance declared the claim inadmissible on the grounds that it lacked territorial jurisdiction. The relevant part of the judgment reads as follows:
“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.”
26. Under section 3 of the LDIP (see paragraph 37 below), the Swiss courts also lacked jurisdiction under the forum of necessity, given the lack of a sufficient connection between, on the one hand, the case and the facts, and, on the other, Switzerland. In this connection, the Court of First Instance ruled as follows:
“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.”
27. By a writ dated 16 November 2005, the applicant appealed against that decision before the Court of Justice of the Republic and the Canton of Geneva (“the Court of Justice”). His appeal was rejected in a judgment of 15 September 2006. After noting that the appellant had shown that he was unable to bring a civil action in Tunisia, the Court of Justice found as follows:
“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.”
28. The Court of Justice thus held that the respondents enjoyed immunity from jurisdiction, since the acts of torture had been perpetrated in the exercise of sovereign authority ( iure imperii ) and not under private law ( iure gestionis ). Referring to the judgment delivered by the Court in the case of Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001-XI), it further considered that there had been no violation of the applicant ’ s right of access to a court.
29. The applicant lodged an appeal with the Federal Supreme Court, dated 20 October 2006, in which he asked it to rule that the courts of the Republic and the Canton of Geneva had territorial jurisdiction and to find that the defendants did not enjoy immunity from jurisdiction. With regard to the jurisdiction of the Swiss courts, he argued that the purpose of the introduction of a forum of necessity in section 3 of the LDIP (see paragraph 37 below) had been to avoid denials of justice, especially in cases of political persecution, and that he had provided sufficient evidence that he could not reasonably bring proceedings before a foreign court. As to the immunity from jurisdiction purportedly enjoyed by Tunisia and A.K., the applicant submitted that the exercise of public power did not include an entitlement to commit international crimes such as torture. He specified in this regard that the very definition of torture in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereafter: “the Convention against Torture”; see paragraphs 45 et seq. below) ruled out any immunity. Lastly, he referred, in very general terms, to Article 16 of the United Nations Convention relating to the Status of Refugees (see paragraph 60 below).
D. The Federal Supreme Court ’ s judgment of 22 May 2007
30. By a judgment of 22 May 2007, the reasoning of which was notified to the applicant on 7 September 2007, the Federal Supreme Court dismissed the appeal. Reiterating the reasoning in the first-instance judgment, the Federal Supreme Court considered that the Swiss courts did not in any event have territorial jurisdiction. The relevant passages of the Federal Supreme Court ’ s judgment read as follows:
“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.
31. The Swiss Government made submissions before the Grand Chamber describing the action taken by the Tunisian Republic after the fall of the regime in January 2011 in order to establish a new democracy and a political system based on respect for human rights and the rule of law. They considered that the possibility of submitting complaints to the newly established courts was the most direct and “natural” means of promoting reconciliation, re-establishing social peace and improving prevention, whilst also respecting the steps taken to repair the harm done to the victims. In this context, the Government referred to Article 148 § 9 of the Tunisian Constitution of 14 January 2014, worded as follows :
“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.”
32. The Government observed that the constituent elements of transitional justice had already been set out in “Organic Law no. 2013-53 of 24 December 2013, on the introduction of transitional justice and related organisational arrangements”, enacted by the Tunisian Parliament on 23 December 2013 and published in the Official Gazette on 31 December 2013. The respondent Government specified that Part III of Title I covered “Accountability and criminal liability”, in order to “prevent impunity and ensure that offenders do not escape punishment” (section 6). Section 8 provided for the establishment of specialised divisions in the courts of first instance, composed of judges who would receive special training in transitional justice. They “[would] rule on cases relating to serious violations of human rights”, including torture (section 8 (2)(3)), which – in accordance with section 9 – were not subject to statutory limitation.
33. The Government explained that Part IV of Title I focused more specifically on “Reparation and Rehabilitation” (sections 10 to 13). Pursuant to section 11 § 1:
“[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.”
34. The Government further added that Title II of the law established a “Truth and Dignity Commission” (TDC), which was an independent body whose members were chosen by the Legislative Assembly from among public officials known for their neutrality, impartiality and competence (sections 16, 19 and 38 of the Organic Law). Under section 17, the TDC ’ s work was to cover the entire period from 1 July 1955 to 31 December 2013, the date of the law ’ s promulgation. The duration of the TDC ’ s work was limited to four years, starting from the date of appointment of its members (section 18).
35. Lastly, the Government informed the Court that, according to information obtained by it from the Swiss Embassy in Tunis, persons who considered themselves victims of the former regime had until 15 June 2016 to apply to the TDC. The Commission was currently dealing with over 60,000 cases. In this capacity, it was holding hearings which, since November 2016, had also been held in public. According to the information received, it was foreseen that selected cases would be transmitted to the courts at a later stage in the investigation process.
36. The applicant has not contested these submissions by the Swiss Government (see paragraphs 31-35 above). He specified at the hearing of 14 June 2017 that he had in fact contacted the TDC and had received a simple acknowledgment of receipt in February 2016, but had had no further communication from the TDC since then.
II. RELEVANT DOMESTIC LAW AND PRACTICE
37. The relevant parts of the Federal Act on Private International Law of 18 December 1987 (LDIP), as in force at the material time, provide:
“Unless specially provided otherwise in this Act, the Swiss judicial or administrative authorities of the defendant ’ s domicile shall have jurisdiction.
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.
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.
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.”
38. Article 41 of the Swiss Code of Obligations provides for liability for a wrongful act:
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
39. The Federal Council ’ s dispatch of 10 November 1982 on section 3 of the LDIP contains the following paragraphs (FF 1983 I 290):
“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
40. The general index of the Federal Supreme Court Reports (ATF) contains no case-law concerning section 3 of the LDIP. There is relatively little case-law from the Swiss courts concerning section 3 of the LDIP. Indeed, the present case led the Federal Supreme Court to interpret section 3 of the LDIP in detail for the first time in its judgment of 22 May 2007. The Federal Supreme Court had previously mentioned this provision in a judgment of 5 March 1991 (5C.244/1990, point 5), without however applying it. In an action for release from liability for a debt, the Federal Supreme Court upheld the application of section 3 of the LDIP, which had not been challenged by the defendant, in a judgment of 15 December 2005 (5C.264/2004, point 5), holding that there existed a sufficient connection with the forum of Lugano, where the claimant had its headquarters, taken together with the place in which the proceedings were brought.
41. Without wishing to be exhaustive, the Court also considers it appropriate to take into consideration cantonal practice, to which the parties and the Federal Supreme Court, in its judgment regarding the present case (4C.379/2006, cons. 3.4), also referred. In a judgment of 2 April 1993 (LGVE [ Luzerner Gerichts- und Verwaltungsentscheide ] 1993 I No. 14), the Supreme Court of the Canton of Lucerne confirmed that there was a sufficient connection with the facts of the case in the context of proceedings to vary the terms of a divorce order. In so doing, it specifically noted the Swiss nationality of the parties, the Swiss residence of the claimant at the time that the action was brought, and the fact that the former spouse ’ s divorce had already been pronounced by a Swiss court. The court confirmed that section 3 of the LDIP was to be interpreted restrictively in order to avoid, inter alia, forum shopping.
42. In a judgment of 2 March 2005 (AR GVP [ Ausserrhodische Gerichts- und Verwaltungspraxis ] 17/2005 no. 3469), the Cantonal Court of Appenzell Outer Rhodes accepted that the claimant ’ s place of residence met the connection criterion in a case concerning a German national, resident in Switzerland, who had brought an action before the Swiss courts against her husband, a German national resident in Spain, seeking to obtain an advance on legal costs in the context of an application for measures to preserve the marital union.
43. In a judgment of 14 November 2008 (C/5445/2007, point 2), the Canton of Geneva Court of Justice, in additional proceedings to a divorce order involving a Swiss and Spanish national and a French national who were resident in France, and in so far as French law did not recognise the system of offsetting vested benefits in an occupational pension plan, accepted the existence of a forum of necessity in the place of the headquarters of the respondent ’ s insurance institution, namely Geneva.
44. In a judgment of 17 May 2013 (NC130001), the Supreme Court of the Canton of Zurich confirmed the existence of a sufficient link regarding a Swiss national domiciled abroad and requesting registration, in Switzerland, of a change of gender.
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The 1984 United Nations Convention against Torture
45. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter “the Convention against Torture”) was ratified by Switzerland on 2 December 1986 and entered into force on 26 June 1987. Article 1 provides:
“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 ...”
46. Article 5 of that Convention provides for the States Parties ’ jurisdiction in criminal matters as follows:
“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.”
47. Articles 6 and 7 of that Convention also relate to the manner in which jurisdiction in criminal matters is exercised:
“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.
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.”
48. Article 14 of that Convention provides for the right of victims of torture to obtain redress:
“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
49. During the deliberations in 1981 the working group accepted a proposal by the Netherlands to include the words “committed in any territory under its jurisdiction” after the expression “act of torture”. When the Convention was adopted, however, this phrase had disappeared, for reasons that are unclear (see Manfred Nowak/Elizabeth McArthur, The United Nations Convention against Torture: A Commentary, Oxford University Press 2008, p. 457).
50. When ratifying the Convention against Torture the United States made the following declaration:
“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.”
51. When submitting the bill for ratification of the Convention against Torture to the Senate, the President of the United States made the following remarks:
“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
52. The United Nations Committee against Torture, the entity entrusted with implementing the Convention against Torture, adopted General Comment no. 3 (2012) on the Implementation of Article 14 by States parties (CAT/C.GC/3, 13 December 2012). In it, the Committee asserted that Article 14 does not contain any geographical limitation:
“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.”
53. With regard to the practical and legal obstacles inherent in the right to redress for acts of torture, the Committee stated:
“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.”
54. However, in several individual communications lodged with the Committee against Torture, the latter has shown a more reserved attitude towards the geographical scope of Article 14. In the case of Marcos Roitmann Rosenmann v. Spain (no. 176/2000), the complainant argued that the handling of an extradition request against General Pinochet, then resident in the United Kingdom, was in breach of Article 14 of the Convention against Torture. In a decision of 30 April 2002, the Committee declared this complaint inadmissible for the following reasons:
“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.”
55. In the case of Z. v. Australia (no. 511/2012, decision of 26 November 2014), the Committee against Torture examined an individual communication lodged by an Australian citizen of Chinese origin who submitted that she had been tortured by the police during a visit to the People ’ s Republic of China (hereafter “China”) in the period 1999-2000. She had attempted, unsuccessfully, to bring a civil action for compensation before the Australian courts against, inter alia, the former President of China and a member of that country ’ s communist party. The action had been dismissed by the Australian courts on the grounds that members of the government of a foreign State enjoyed immunity. The Committee, called upon to examine the case, reiterated its approach concerning the geographical application of Article 14 of the Convention against Torture, but dismissed the communication, accepting that the State Party had been unable to establish its jurisdiction for acts of torture committed outside its territory by officials of another State (references omitted):
“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
56. Academic opinion is divided on the question whether Article 14 of the Convention against Torture has extra-territorial jurisdiction. In the opinion of certain commentators, this provision does not lay down an obligation to exercise universal jurisdiction, but equally it does not prohibit States, in the light of paragraph 2 and of the object and purpose of the Convention, from providing for such a possibility (see Nowak/McArthur, op.cit ., p. 494 et seq., and Kate Parlett, Universal Civil Jurisdiction for Torture, European Human Rights Law Review, Issue 4 (2007), pp. 385-403, 398).
57. Other authors argue that Article 14 does apply to acts of torture committed abroad, given that it provides for no geographical limitation (see Christopher Keith Hall, The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad, European Journal of International Law, vol. 18 no. 5 (Nov. 2007), pp. 921-37, 926, and Alexander Orakhelashvili, State Immunity and Hierarchy of Norm: Why the House of Lords Got It Wrong, European Journal of International Law, vol. 18 no. 5 (Nov. 2007), pp. 955-70, 961).
58. Still other commentators consider that no inference can be drawn from Article 14 as to whether a State Party is obliged to make available to victims of torture remedies in respect of acts which were perpetrated outside its jurisdiction (see, for example, Paul David Mora, The Legality of Civil Jurisdiction over Torture under the Universal Principle, German Yearbook of International Law, Vol. 52, 2009, pp. 367-403, 373).
B. The 1951 United Nations Convention relating to the Status of Refugees
59. The United Nations Convention relating to the Status of Refugees of 28 July 1951 entered into force on 22 April 1954. It was ratified by Switzerland on 21 January 1955 and entered into force in respect of Switzerland on 21 April 1955.
60. The relevant provision for the present case reads as follows:
“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
61. On 16 December 2005 the General Assembly of the United Nations adopted Resolution 60/147, containing, in the annex, the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”. The relevant paragraphs are worded as follows:
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.
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
62. On 30 August 2015 the Institute of International Law (hereafter “the IIL”) adopted at its Tallinn Session a Resolution entitled “Universal Civil Jurisdiction with regard to Reparation for International Crimes”. It is worded as follows:
“ 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:
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.
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.
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.
States should endeavour to develop procedures to allow groups of victims to present claims for reparation.
The immunity of States should not deprive victims of their right to reparation.
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.”
63. In his background report to this Resolution ( Yearbook of the Institute of International Law, Tallinn Session, Justitia et Pace, 2015 vol. 76, pp. 1 ‑ 266), the rapporteur Andreas Bucher argues that Article 14 of the Convention against Torture does not impose universal civil jurisdiction in the area of international crimes, in the following terms:
“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
64. The background report to the Resolution adopted by the IIL in 2015, mentioned above (see paragraph 63), also refers to the concept of the forum of necessity. It argues that this concept is not generally accepted by the States, as follows:
“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...”
65. In addition, referring to the present case as judged before the Swiss courts, the rapporteur notes the lack of precision in the criteria used by the domestic legal orders, such as “sufficient connection” or “connection with the dispute”:
“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.”
66. At its Sofia Session in 2012, the “Committee on International Civil Litigation and the Interests of the Public” of the International Law Association (hereafter, “the ILA”) adopted Resolution no. 2/2012. This Resolution addresses problems of coordination between different jurisdictions and is limited to claims against individuals, corporations and other non-State actors (see paragraph 1.1 below). Among the elements which could serve as grounds for State jurisdiction, the Resolution proposes, inter alia, the forum of necessity. The relevant paragraphs are worded as follows:
“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(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.”
67. The Court has updated the comparative-law analysis that was prepared for the Chamber (see paragraphs 48-76 of the Chamber judgment). The updated version 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), and also certain States which are not members of the Council of Europe.
A. Universal jurisdiction for civil actions to obtain compensation for damage sustained as a result of torture
68. In the context of the comparative-law research, the Court analysed the situation in the various States with regard to universal jurisdiction for civil actions to obtain compensation for damage sustained as a result of acts of torture.
1. Council of Europe member States
69. It follows from the above-mentioned study that, of the 39 European States included in the analysis, only the Netherlands recognise universal civil jurisdiction in respect of acts of torture. In the Akpan case (judgment of 30 January 2013, case no. C/09/337050/HA), the District Court of The Hague found against a subsidiary of the Dutch company Shell, holding that it had breached its responsibility to protect the Ogoni people in Nigeria in the course of its petroleum-extraction activities. The parent company was also subject to an obligation to provide protection under Nigerian law, but it was found that, in this particular case, the conditions for applying that obligation were not met. Previously, in the El-Hojouj v. Amer Derbas and Others case (judgment of 21 March 2012, case no. 400882/HA), the same court had awarded damages to a Palestinian doctor who had been tortured by Libyan officials.
70. The other Contracting States studied do not recognise universal international jurisdiction before the civil courts, whether for acts of torture or for other criminal acts or offences.
71. In Italy, for example, there is neither a provision of positive law nor clear case-law conferring on the civil courts universal jurisdiction for compensation claims in cases of torture and crimes against humanity. However, part of Italian academic opinion considers that certain decisions by the Italian courts may be moving in the direction of recognising such jurisdiction. These include the Court of Cassation ’ s judgment in the Ferrini case (6 November 2003, 11 March 2004), concerning Germany ’ s liability for the claimant ’ s arrest in Italy and his deportation to Germany during the Second World War. In the context of those proceedings, the Court of Cassation placed particular emphasis in its reasoning on the need to ensure respect for jus cogens as a fundamental value of the international community. Reference should also be made to a series of subsequent judgments delivered by the Italian courts against Germany in the period 2004-2008. One of those judgments declared enforceable in Italy a judgment by a Greek court which ordered Germany to compensate the victims of the Distomo (Greece) massacre of 10 June 1944. These Italian judgments were the subject of the judgment by the International Court of Justice (hereafter, “the ICJ”) of 3 February 2012, in the case on Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, p. 99), which found that Italy had breached customary international law guaranteeing States jurisdictional immunity.
72. In the United Kingdom, in the case of Jones v. Saudi Arabia ([2006] UKHL 26), the House of Lords held that Article 14 of the Convention against Torture did not provide for universal civil jurisdiction, and that there was no evidence that States had recognised an international-law obligation to exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of international law. Equally, there was no consensus of judicial and learned opinion that they should. The House of Lords distinguished the Jones case from another case previously examined by it, namely Pinochet (no. 3) [ ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147], concerning the former Chilean dictator, on the grounds, specifically, that the Pinochet case concerned criminal proceedings which fell squarely within the universal jurisdiction mandated by the Convention against Torture (see §§ 25-32 of the judgment). The House of Lords thus found no reason to set aside the applicability of the rule laying down absolute State immunity for acts committed by their representatives acting in their official capacity. That case subsequently came before this Court, which held that there had been no violation of Article 6 § 1 of the Convention (see Jones and Others v. the United Kingdom, nos. 34356/06 and 40525/06, ECHR 2014). In a recent judgment in the case of Belhaj and another v. Straw and others ([2017] UKSC 3), Lord Mance and Lord Sumption reiterated the findings of the House of Lords with regard to the non-existence of universal civil jurisdiction for acts of torture.
2. Non-member States of the Council of Europe
73. Turning to non-member States of the Council of Europe, the Court notes that the Canadian courts enjoy universal jurisdiction in examining civil claims – but solely in cases concerning terrorism, under the 2012 Justice for Victims of Terrorism Act. However, this jurisdiction is subject to the condition that the victim is a Canadian citizen or is a permanent resident of Canada, or that the civil action has a “real and substantial connection to Canada”. In contrast, universal jurisdiction does not apply to actions in respect of damage sustained as a result of other violations of international law, including torture, except where it is shown that it took place in the context of acts of terrorism. In the case of Bouzari v. Islamic Republic of Iran ([2004] 243 DLR (4 th ) 406), the Ontario Court of Appeal held that Article 14 of the UN Convention against Torture did not impose an obligation on Canada to ensure civil-law remedies for acts of torture committed outside its territory. In the case of Kazemi (Succession) v. the Islamic Republic of Iran (2014 SCC 62, [2014] 3 S.C.R 176), the Supreme Court of Canada, noting the absence of State practice and of opinio juris, held that Canada was not obliged to open its courts so that its citizens could seek civil redress for acts of torture committed abroad.
74. Of all the States included in the present survey, only the United States provides, at federal level, for universal jurisdiction in respect of civil claims for compensation with regard to damage sustained as a result of torture, on the basis of two federal laws: the 1789 Alien Tort Statute and the 1991 Torture Victim Protection Act.
75. The first ascribes jurisdiction to the federal courts for “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. In other words, it is not necessary that the impugned act was committed in the territory of the United States or by a national of that State. The first significant application of the Alien Tort Statute was in the landmark case of Filártiga v. Peña-Irala, examined before the Second Circuit Court of Appeals in 1980 [630 F.2d 876 (2d Cir. 1980)]. In that case, the court accepted the complaint by the parents of a victim who had been tortured to death in Paraguay; the complaint was brought against the perpetrator of the impugned acts, who was then resident in the United States. The court found that federal jurisdiction could be exercised whenever an alleged torturer was found and served with process by an alien within the borders of the United States (ibid., at p. 878).
76. The Torture Victim Protection Act provides as follows:
“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).
77. It is clear from these two laws that cases can, a priori, be submitted to the courts of the United States without there being a jurisdictional link with that country. For a court to be entitled to take action on a case, the person against whom the claim is brought must nonetheless fall within the jurisdiction of the United States at the time that the action is lodged. Furthermore, even where the court ’ s jurisdiction is accepted, there exist other legal obstacles. In reality, it seems that about 80% of the cases brought under those two Acts have been dismissed on various grounds, such as the “act of State” doctrine, sovereign immunity or the forum non conveniens doctrine (see Nowak/McArthur, op.cit ., p. 494).
78. Moreover, limitations have been placed on the scope of the Alien Tort Statute in recent years. In the case of Kiobel v. Royal Dutch Petroleum Co ., Nigerian nationals who had obtained refugee status in the United States applied to the American courts under the Alien Tort Statute, alleging that Dutch, British and Nigerian companies had aided and abetted violations of international law committed by the Nigerian Government [ Kiobel v. Royal Dutch Petroleum Co ., 133 S. Ct. 1659 (2013)]. On 17 April 2013 the US Supreme Court ruled as follows:
“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.
On these facts, all the relevant conduct took place out ­ side 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
79. The question of the civil courts ’ universal jurisdiction must be distinguished from the possibility of applying to join the proceedings as a civil party in criminal proceedings brought before the criminal courts on the basis of the principle of universal jurisdiction in criminal matters. Several States provide for this possibility (including Belgium, Spain, France, Ireland, Norway, the Czech Republic and Slovenia).
80. Thus, in Belgium the universal jurisdiction of the national criminal courts is governed by Article 12 bis of the preliminary part of the Code of Criminal Procedure, introduced by the Law of 5 August 2003. This article enables the Belgian criminal courts to extend their jurisdiction to include offences that do not have a connection with the national territory, either in application of a rule of international law (as provided for by the Convention against Torture), or in application of a rule of customary international law (as regards the crime of genocide and crimes against humanity).
81. Equally, the Judicature Act in Spain provides for the universal criminal jurisdiction of the Spanish courts for certain crimes, including crimes against humanity and acts of torture, committed in other States by Spanish citizens or by non-nationals, subject to certain conditions. In the context of criminal proceedings, the victims of crimes may join the proceedings as a civil party and claim redress in respect of the damage sustained (Article 112 of the Code of Criminal Procedure).
82. In France, the Code of Criminal Procedure allows criminal charges to be brought against persons responsible for acts of torture and other cruel, inhuman or degrading treatment or punishment, even when committed outside French territory, and to try them before French courts if those persons are present in France. In such cases, the civil-party proceedings can be joined to the public prosecution.
83. In Ireland the legislation also recognises universal criminal jurisdiction in respect of torture and crimes against humanity, and the general national scheme of compensation for victims of crime applies in principle to cases examined by the Irish courts on that basis; however, there is no practical example to date of such compensation being awarded by the Criminal Injuries Compensation Tribunal.
84. The Court ’ s comparative-law analysis has shown that the rules governing universal civil jurisdiction in eleven of the European States considered (Austria, Belgium, Estonia, France, Germany, Luxembourg, the Netherlands, Norway, Poland, Portugal and Romania) 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). Including Switzerland, there are therefore twelve States in this category. Among the non-member States of the Council of Europe, the forum of necessity is recognised by the Civil Code of Quebec (in Canada), but the domestic case-law has recently introduced it into the domestic law of some other Canadian provinces.
85. In eight of these States, the forum of necessity is provided for by law (Austria, Belgium, Estonia, the Netherlands, Poland, Portugal, Romania and Switzerland), even if it was in some instances initially defined by the case ‑ law and subsequently enacted in law by the legislature. Quebec also comes within this category. In the four other States ( France, Germany, Luxembourg and Norway), the forum of necessity is a creation of case-law, and has not been enacted into law by the legislature. The same is true in respect of Canada (except for Quebec).
86. In France, private international law does not include the jurisdictional principle of a “forum of necessity” as such. In some rare cases, however, the national courts have held, on the basis of international public policy and in order to avoid a denial of justice, that they have jurisdiction.
2. Applicability ratione materiae
87. As to the types of dispute to which the principle of the forum of necessity applies, the Court notes that in all of the States studied which recognise this concept, the forum of necessity is applied, barring the occasional exception, without distinction being made on the basis of the nature of the dispute. It seems, however, that this forum is primarily applied in the areas of family law or contract law. It does not appear that the courts in these member States have been required to rule on a case similar to the present one, that is, concerning a civil action to obtain compensation for damage sustained as a result of torture.
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.
89. With regard to the first condition, the Court observes that the forum of necessity is by nature subsidiary, and that it enters into play where examination of the case by the courts of another State is ( de jure or de facto ) impossible, or is unreasonably difficult. With regard to the second condition, namely the existence of a certain connection between the dispute and the forum State in question, the Court notes that the relevant legislative provisions require either “close ties” (as in Belgium and Estonia), or “sufficient” (Poland, Romania) or “sufficiently strong” ties (Portugal), without further precision. Identification of the relevant connection and of its effective existence is carried out in the specific circumstances of the case by the domestic court before which it is brought. The factors which indicate a connection accepted by the courts may vary depending on the nature of the dispute or the identity of the parties (legal entities, natural persons).
4. Distinction between forum of necessity and forum non conveniens
90. The Court further notes that in those States and territories with a legal system based on the Anglo-American tradition, the question of a forum of necessity is not posed in the same terms. The broad scope of judicial power leads the courts to set limits on it. These limits are the equivalent of the grounds of jurisdiction in the civil-law tradition, in that they determine the cases that may be heard and determined by the courts. In the majority of cases, therefore, the aim is not to resolve a conflict as to proper jurisdiction by allowing for an additional or exceptional forum, but, conversely, to prevent too broad an exercise of judicial power at international level. To this end, an exception known as the forum non conveniens has been developed. Under this exception “a national court can decline jurisdiction on the grounds that a court with equal jurisdiction, situated in another State, would, objectively speaking, be a more appropriate forum for examining a dispute, that is, before which the dispute could be suitably settled, for the interests of all parties and for the ends of justice” (see House of Lords judgment in Spiliada Maritime Corporation/Cansulex Ltd, [1987] AC 460, esp. p. 476). The concept of denial of justice is relevant only for ensuring that the court before which a forum non conveniens claim is brought does not relinquish jurisdiction without verifying that an alternative forum exists.
91. The Court also considers it appropriate to refer to certain relevant elements of European Union law. The recast version of the Brussels I Regulation (known as “Brussels I- bis ”, introduced by Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), in force since 10 January 2015 ) does not provide for a forum of necessity. However, the forum of necessity is explicitly recognised in three special regulations covering certain fields which are excluded from the scope of the Brussels I ‑ bis Regulation pursuant to Article 1 § 2.
92. Thus, Article 11 of Regulation (EU) no. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession explicitly provides for a forum of necessity in the following terms:
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.”
93. Furthermore, a similar provision is contained in Article 7 of Council Regulation (EC) no. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. This is also the case with regard to Article 11 of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial regimes. However, it should be noted that none of these texts provides more specific information on the nature of this connection. Identification of the relevant connection and the effective existence of a sufficient connection are left in each case to the assessment of the domestic court.
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
94. The applicant complained that the Swiss courts had declined jurisdiction to examine the merits of his action for damages, lodged against Tunisia and against A.K., who were, he alleged, responsible for the acts of torture that had been inflicted on him on the territory of Tunisia. He alleged a violation of his right of access to a court within the meaning of Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“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...”
95. The Government contested that argument.
A. The nature and scope of the dispute
96. The Court considers it appropriate to clarify at the outset the nature of the present dispute and what exactly is at stake. In this connection, it reiterates that the applicant claims to have been subjected to acts of torture and that the Swiss authorities granted him asylum on account of persecution suffered in his country of origin. If proved true, the facts at the origin of the application are therefore particularly serious.
97. In this context, the Court would emphasise, first and foremost, the broad international consensus recognising the existence of a right for victims of acts of torture to obtain appropriate and effective compensation (see paragraphs 61 and 62 above). While there is little doubt as to the binding effect of this right on the States with regard to acts of torture perpetrated on the territory of the forum State or by persons within its jurisdiction, the same does not apply to acts committed by third States or persons under their jurisdiction (see paragraphs 182-202 below). However, it is precisely this latter category of acts which is in issue in the present case. The Court would therefore specify that, whatever the consequences that fall to be drawn with regard to this circumstance under the Convention, they do not call into question, as to its principle, the right of victims of acts of torture to obtain appropriate and effective compensation.
98. The Court also considers it useful to clarify four aspects regarding the scope of the dispute. Firstly, it reiterates that the Chamber left open the question of whether the respondents enjoyed immunity from jurisdiction in the proceedings in issue in the present case, given that the Federal Supreme Court declined at the outset its jurisdiction ratione loci to examine the applicant ’ s appeal, and accordingly concluded that it was not necessary to consider the question of immunity from jurisdiction (see Chamber judgment, § 106).
99. The Court notes that this approach corresponds to the international practice in this area. Indeed, the ICJ, in the case concerning the Arrest Warrant of 11 April 2000 ( (Democratic Republic of the Congo v. Belgium), judgment, ICJ Reports 2002, § 46), held:
“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.”
The ICJ had a subsequent opportunity to confirm this principle ( Jurisdictional Immunities of the State (Germany v. Italy; Greece [intervening] ), ICJ Reports 2012, § 82). Accordingly, bearing in mind its conclusion as to the jurisdiction of the Swiss courts, the Court does not consider it necessary to examine the question of possible immunities from jurisdiction.
100. Secondly, as regards the applicant ’ s criticism of the prosecuting authorities, accusing them of a lack of diligence in respect of A.K., – a criticism shared by the authors of the dissenting opinion annexed to the Chamber judgment –, the Court observes that the applicant lodged his criminal complaint on 14 February 2001 and that, 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, 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” (see paragraph 20 above). 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 left the hospital on 11 February 2001 and had subsequently left Switzerland. The decision to discontinue the proceedings was not challenged by the applicant. The Court concludes that the Swiss prosecuting authorities cannot be accused of negligence in dealing with the applicant ’ s criminal complaint. It follows that this aspect will not be taken into consideration by the Grand Chamber in assessing compliance with Article 6 of the Convention.
101. Thirdly, the Court reiterates that, at the hearing of 14 June 2017, the applicant confirmed that he had sent an application to the TDC (see paragraph 36 above) and in February 2016 had received a simple acknowledgment of receipt, but had had no further news from the TDC since then. In so far as this entity was set up after the relevant Federal Supreme Court judgment in this case, the Court considers that the possibility of submitting a complaint to it, possibly followed by judicial proceedings, as explained by the Government (see paragraphs 31-35 above), is not relevant for the examination of the present case.
102. Fourthly, with regard to the fact that the applicant would appear never to have brought proceedings in Italy, whether against the Tunisian authorities, in respect of the torture sustained, or against the Italian authorities, in respect of his arrest and surrender to the Tunisian authorities on 22 April 1992 (see paragraph 14 above), the Court points out that it put a specific question to the parties on this matter ahead of the hearing on 14 June 2017, without however obtaining any definite information in response. It further reiterates that the Federal Supreme Court left open the question whether the second condition for the application of section 3 of the LDIP – that legal proceedings in another country were impossible or could not reasonably be required – had been met (point 3.3 of the judgment, see paragraph 30 above). Accordingly, and in the absence of more ample information on this subject, the outcome of such proceedings, including the question of the jurisdiction of the Italian courts, remains speculative. In those circumstances, the Court cannot rule on this question.
B. Applicability of Article 6 of the Convention
103. In their submissions before the Chamber, the Government, referring primarily to the Al-Adsani judgment (cited above, § 47), maintained, in essence, that Article 6 § 1 of the Convention could not create, by way of interpretation, a substantive civil right which had no legal basis in the State concerned. In their view, Swiss law did not recognise a right to bring an action for compensation in respect of acts of torture that had no connection with Swiss jurisdiction. Accordingly, Article 6 § 1 of the Convention was not applicable to this case.
104. The Chamber rejected this argument as follows (Chamber judgment, § 85):
“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.”
105. The Grand Chamber notes that the Government did not repeat this argument in the proceedings before it, or contest the Chamber ’ s opinion on this point. Nonetheless, it considers it useful to add the following observations.
106. The applicability of Article 6 § 1 in civil matters firstly depends on the existence of a dispute (“ contestation ” in French). Further, the dispute must relate to “rights and obligations” which, arguably at least, can be said to be recognised under domestic law. Lastly, these “rights and obligations” must be “civil” ones within the meaning of the Convention, although Article 6 does not itself guarantee any particular content for them in the substantive law of the Contracting States (see, for example, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 88, ECHR 2016 (extracts); Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012; and James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98). This concept cannot be interpreted solely by reference to the respondent State ’ s domestic law; it is an “autonomous” concept deriving from the Convention. Article 6 § 1 of the Convention applies irrespective of the parties ’ status, the character of the legislation which governs how the “dispute” is to be determined, and the character of the authority which has jurisdiction in the matter (see, for example, Georgiadis v. Greece, 29 May 1997, § 34, Reports of Judgments and Decisions 1997 ‑ III). Whether or not a right is to be regarded as civil within the meaning of that term in the Convention must be determined by reference not only to its legal classification but also to its substantive content and effects under the domestic law of the State concerned (see Perez v. France [GC], no. 47287/99, § 57, ECHR 2004 ‑ I).
107. In the present case, the Court has no doubt that there exists a “genuine and serious” dispute, as required by the Court ’ s case-law (see, for example, Lupeni Greek Catholic Parish and Others, cited above, § 71, and Sporrong and Lönnroth v. Sweden, 23 September 1982, § 81, Series A no. 52). 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).
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. In addition to Article 41 of the Swiss Code of Obligations, mentioned by the Chamber (see paragraph 38 above), which recognises the general principle of civil liability for unlawful acts, the Court refers to the elements of international law cited above (see paragraphs 61-63 above) and especially to Article 14 of the Convention against Torture (see paragraphs 45 et seq. above). This guarantees a right that is firmly embedded, as such, in general international law, namely the right of victims of acts of torture to obtain redress and to fair and adequate compensation. With the ratification of this instrument by Switzerland on 2 December 1986, its provisions became an integral part of Switzerland ’ s legal system, obliging the national authorities to comply with them.
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.
1. The principles governing the right of access to a court
112. The Court reiterates that the right of access to a court – that is, the right to institute proceedings before the courts in civil matters – constitutes an element which is inherent in the right set out in Article 6 § 1 of the Convention, which lays down the guarantees applicable as regards both the organisation and composition of the court, and the conduct of the proceedings. All of those elements make up the right to a fair trial secured by Article 6 § 1 (see Baka v. Hungary [GC], no. 20261/12, § 120, ECHR 2016, and Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18).
113. The right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see, among other authorities, Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 126, ECHR 2016; Eşim v. Turkey, no. 59601/09, § 18, 17 September 2013; and Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002 ‑ IX). Everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way, Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, is one particular aspect (see, inter alia, Howald Moor and Others v. Switzerland, nos. 52067/10 and 41072/11, § 70, 11 March 2014, and Golder, cited above, § 36).
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 (see Baka, cited above, § 120; Al-Dulimi and Montana Management Inc., cited above, § 129; Yabansu and Others v. Turkey, no. 43903/09, § 58, 12 November 2013; and Howald Moor and Others, cited above, § 71). 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 (see Baka, cited above, § 120; Al-Dulimi and Montana Management Inc., cited above, § 129; Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012; and Howald Moor and Others, cited above, § 71).
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 (see Baka, cited above, § 120; Al-Dulimi and Montana Management Inc., cited above, § 129; Stubbings and Others v. the United Kingdom, 22 October 1996, § 50, Reports 1996 ‑ IV; Stagno v. Belgium, no. 1062/07, § 25, 7 July 2009; and Howald Moor and Others, cited above, § 71).
116. Lastly, the Court reiterates the fundamental principle according to which it is for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, Kruslin v. France, 24 April 1990, § 29, Series A no. 176 ‑ A; Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998 ‑ II; and Nusret Kaya and Others v. Turkey, nos. 43750/06, 43752/06, 32054/08, 37753/08 and 60915/08, § 38, ECHR 2014 (extracts)). It follows that the Court cannot call into question the findings of the domestic authorities on alleged errors of domestic law unless they are arbitrary or manifestly unreasonable (see, to this effect, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, §§ 85-86, ECHR 2007 ‑ I).
2. Application of these principles in the present case
117. It is clear that the applicant ’ s right of access to a court was restricted in that the Swiss courts held that they did not have jurisdiction to entertain his claim for compensation. The Court must therefore examine whether that restriction pursued a legitimate aim and, if so, whether it was reasonably proportionate to the aim pursued.
a. Did the restriction on the applicant ’ s right of access to a court pursue a legitimate aim?
118. With regard to the aim pursued by the restriction on the right of access to a court, the Chamber considered that the refusal to entertain the applicant ’ s civil action was aimed at ensuring the proper administration of justice and the effectiveness of domestic judicial decisions. It also shared the Government ’ s view that universal jurisdiction, in a civil context, would risk creating considerable practical difficulties for the courts, particularly regarding the administration of evidence and the enforcement of judicial decisions (see Chamber judgment, § 107).
ii. The parties ’ submissions to the Grand Chamber
119. With regard to the legitimate aims based on the proper administration of justice and the effectiveness of domestic judicial decisions, the applicant submitted that the Chamber had not really explained what was to be understood by those concepts. He considered that the Court ’ s case-law had, over decades, expanded litigants ’ access to the courts very extensively, without the Court ever accepting the argument that this could result in an additional burden on the courts.
120. With regard to the difficulties arising from the administration of evidence, the applicant submitted that the judgment had provided no explanation of, or justification for, this assertion. As to the difficulties in the enforcement of judicial decisions, he submitted that the feasibility of enforcing in another country a judgment delivered in Switzerland could not be a precondition for recognising the jurisdiction of the Swiss courts, adding that the Federal Supreme Court ’ s judgment made no reference to this argument in its reasoning.
121. With regard to the aims pursed by the restriction on the applicant ’ s access to a court, the Government referred to the Chamber ’ s reasoning (see paragraph 118 above).
122. With regard to the legitimate aims of the impugned restriction, the Grand Chamber discerns several, which are all related to the principles of the proper administration of justice and maintaining the effectiveness of domestic judicial decisions.
123. Firstly, there can be little doubt that an action such as the applicant ’ s, alleging that he had been tortured in Tunisia in 1992, would pose considerable problems for the Swiss courts in terms of gathering and assessing the evidence.
124. In addition, the enforcement of a judgment giving effect to such an action would entail practical difficulties (see Chamber judgment, § 107). In this connection, one might wonder, from the perspective of the effective right of access to a court, whether a judgment delivered in such circumstances could effectively be enforced (see, mutatis mutandis, Hornsby v. Greece, 19 March 1997, §§ 40-45, Reports 1997 ‑ II).
125. Further, it seems legitimate for a State to wish to discourage forum shopping, in particular in a context in which the resources allocated to domestic courts are being restricted.
126. Moreover, the Court considers justified the fear expressed by the Government to the effect that accepting an action such as the applicant ’ s, where the connection with Switzerland at the relevant time was relatively tenuous, would be likely to attract similar complaints from other victims in the same situation with regard to Switzerland, and thus to result in an excessive workload for the domestic courts. It follows that a reasonable restriction on admissible complaints is likely to ensure the effectiveness of the justice system.
127. Lastly, and as a subsidiary consideration, the Grand Chamber accepts that a State cannot ignore the potential diplomatic difficulties entailed by recognition of civil jurisdiction in the conditions proposed by the applicant.
128. In view of the foregoing considerations, the Court concludes that the restriction on the applicant ’ s right of access to a court can be regarded as pursuing the legitimate aims referred to above. It must now determine whether it was proportionate to those aims.
b. Was the restriction proportionate?
129. With regard to the proportionality of the restriction in question, the Chamber held that it had not infringed the very essence of the applicant ’ s right of access to a court (see Chamber judgment, § 108). In particular, it considered that the respondent State was not bound to accept universal civil jurisdiction under other norms of international law, despite the undisputed jus cogens nature of the prohibition on torture in international law (see Chamber judgment, § 116).
130. The Chamber further noted that the very wording of Article 14 of the Convention against Torture, ratified by Switzerland, was not unequivocal as to its extra-territorial application, and that no concrete indications could be derived from the preparatory works to that provision (see Chamber judgment, § 117). The Chamber also pointed out that none of the 26 European States analysed in its survey recognised universal civil jurisdiction in respect of acts of torture (see Chamber judgment, § 118). It concluded that Switzerland was not bound by any convention obligation to accept the applicant ’ s civil action on that basis (see Chamber judgment, § 120).
131. The Chamber also considered that the Federal Supreme Court ’ s interpretation of section 3 of the LDIP in the present case, while restrictive, had not been arbitrary (see Chamber judgment, § 112). It pointed out that the applicant had obtained Swiss nationality in the intervening period, but observed that the Town of Versoix ’ s confirmation of the applicant ’ s acquisition of nationality had been issued after the adoption of the Federal Supreme Court ’ s judgment of 22 May 2007 and could not therefore be taken into account by that court (see Chamber judgment, § 113). Furthermore, the Chamber noted that only nine of the 26 Contracting States studied in its comparative-law analysis recognised the concept of a forum of necessity and that, in those States which did apply it, it was, as in Switzerland, subject to strict conditions which had to be met cumulatively. The Chamber concluded that the interpretation given to section 3 of the LDIP in the present case was in no way exceptional and reflected the solution adopted in the member States of the Council of Europe which had introduced such a forum of necessity into their own legal systems ( see Chamber judgment, § 114).
ii The parties ’ submissions to the Grand Chamber
132. The applicant submitted that the restriction on the right of access to an appropriate forum, Switzerland in his case, had been manifestly unreasonable and had in the present case impaired the very essence of that right. With regard to the drafting history of section 3 of the LDIP, he pointed out that the Federal Council had noted that “[t]he Swiss authorities must declare themselves competent, even in cases in which the connection with our country [was] tenuous, where it [was] impossible to bring an action or lodge an appeal abroad” (point 3.4 of the Federal Supreme Court ’ s judgment, referring to Federal Gazette 1983 I 290). Yet, according to the applicant, the Federal Supreme Court had nevertheless departed from this approach by indicating that section 3 of the LDIP was to be interpreted restrictively and denying the existence of sufficient ties between himself and Switzerland.
133. As to the impairment of the very essence of the right of access to court within the meaning of Article 6, the applicant argued that it was established that he could not bring his case before the ordinary forum in Tunisia. He alleged that, by interpreting the concept of “the case” as being restricted to the facts at the origin of the legal action, namely to the torture, the Federal Supreme Court had closed the door to any possibility for the applicant to obtain the reparation to which he laid claim. In so doing, that court had refused the possibility of conducting a genuine balancing exercise of all the interests at stake, between the possible legitimate aims justifying a restriction on the one hand and the fact that the case concerned reparation for an international crime and his connections with Switzerland on the other.
134. According to the applicant, the present case did not necessarily require the Court to rule on the refusal or acceptance of universal civil jurisdiction. Instead, it concerned the question whether a State which had legislated for a right of access to its courts by introducing a forum of necessity could interpret that forum in a manner which disregarded the ties that one of the parties to the dispute had with that State.
135. In any event, the applicant considered that the approach taken by the Federal Supreme Court had been incompatible with international law. He submitted that Article 14 of the Convention against Torture imposed an obligation on the States Parties not to interpret their domestic legal provisions in such a way as to negate the right of the victims of torture to obtain reparation. He referred to General Comment no. 3 (2012) of the United Nations Committee against Torture (§ § 52-53 above), which stated that “[t]he Committee consider[ed] that the application of article 14 [was] not limited to victims who [had been] harmed in the territory of the State party or by or against nationals of the State party ... This [was] particularly important when a victim [was] unable to exercise the rights guaranteed under article 14 in the territory where the violation took place” (General comment no. 3 (2012), § 22). Thus, the applicant submitted that Article 14 of the Convention against Torture enshrined an obligation on all the States Parties to the Convention against Torture. He added that the ICJ had specified, with regard to obligations erga omnes partes, that “each State party ha[d] an interest in compliance with them in any given case” ( Questions relating to the Obligation to Prosecute or Extradite ( Belgium v. Senegal ), judgment, ICJ Reports 2012, § 68). With regard to torture, he also pointed out that the ICJ had held that by establishing the jurisdiction of their courts to prosecute crimes of torture, “the States parties ensure[d] that their legal systems [would] operate to that effect and commit themselves to coordinating their efforts to eliminate any risk of impunity” (ibid., § 75).
136. The applicant further noted that at its Tallinn Session in 2015, the IIL had adopted a resolution entitled “Universal Civil Jurisdiction with regard to Reparation for International Crimes” (see paragraph 62 above). He pointed out that Article 2 of this Resolution set out the right to enjoy effective access to justice in order to be able genuinely to seek and obtain this reparation. The same Article set out in detail the conditions which must guide the Swiss courts in establishing their jurisdiction over claims for reparation in respect of international crimes. The applicant concluded that recourse to Article 2 of the IIL Resolution would have made it possible to interpret section 3 of the LDIP in such a way as to fully safeguard his right to an appropriate forum. Furthermore, as a recognised refugee in Switzerland, he also relied on Article 16 of the United Nations Convention relating to the Status of Refugees (see paragraph 60 above) in support of his case.
137. The applicant then pointed out that the requirement of a forum of necessity had been laid down in 2012 by the ILA in its Sofia Guidelines on Best practices for international civil litigation for human rights violations (see paragraph 66 above). This proposal had been intended to encourage the adoption of rules of private international law to ensure the fair and effective resolution of questions arising in civil litigation in respect of human-rights violations. The applicant added that, even if this proposal [had] not (yet) entered into positive law, it was nevertheless an element to be taken into account in developing an opinio juris that would guarantee, in the most appropriate way, protection against denials of justice.
138. The applicant also pointed out that the main question before the Federal Supreme Court had been the meaning to be assigned to “the locality with which the case ha[d] a sufficient connection”, in determining the existence of a forum in Switzerland. He added that, on this point, the Federal Supreme Court had assigned the concept of “case” solely to the factual situation underlying the claim, namely the criminal act (torture), while refusing the idea that facts concerning the claimant ’ s person could constitute admissible elements in interpreting the concept of sufficient connection with Switzerland (he referred to point 3.5, § 6 of the Federal Supreme Court ’ s judgment; see paragraph 30 above). According to the applicant, however, the place of residence of one of the parties (the victim) could not be left out of the constituent elements of the “facts of the case”. Regarding, more specifically, civil liability, as in the present case, he submitted that if the facts occurred abroad it would never be possible to provide an ordinary forum under section 3 of the LDIP and, in consequence, the Federal Supreme Court ’ s interpretation ruled out all possibility of providing a forum of necessity. In other words, the Federal Supreme Court ’ s restrictive interpretation of the concept of “the case” had negated the very purpose of that provision, which was to prevent denials of justice.
139. The applicant further observed that recognition of a forum in Switzerland was currently subject to conditions that were stricter in a case of torture than those existing in other areas of law; this was completely incompatible with the purpose of section 3 of the LDIP, which was to reserve a forum of last resort for exceptional cases, such as for crimes of international law. In this regard, he specified that Swiss practice contained numerous legal or case-law examples substantiating the notion that the “case” [“ cause ”] could not be confined solely to the set of facts which gave rise to the legal question to be determined. In respect of those situations, the legislature or the courts had taken the view that if the action could not be brought in the forum to which it would ordinarily have been assigned, or if it could not reasonably be required that it be brought there, an alternative forum had to be provided in Switzerland where there existed a further connection, which might range from the nationality of one of the parties to the mere fact of property having been attached by the courts. In none of these situations was the fact that the legal basis for the action was to be found in another country regarded as inconsistent with recognition of an appropriate forum in Switzerland.
140. In other words, the interpretation provided by the Federal Supreme Court, in a case in which the action concerned reparation following acts of torture, was in direct conflict with the thrust of the legislation and case-law developments in cases concerning, inter alia, termination of proceedings, confirmation of attachment of property, divorce, the general effects of marriage, and parent-child relationships established by birth or adoption.
141. The applicant also alleged that the Chamber had correctly considered, with regard to the approaches adopted in other States, that “the sufficient connection [was] normally based on nationality, domicile or habitual residence”. He added that “[i]t follow[ed] that section 3 of the LDIP [was] in no way exceptional and [fell] within a very broad consensus among the member States of the Council of Europe which ha[d] introduced this form of jurisdiction into their own legal systems” (see Chamber judgment, § 114). According to the applicant, it was thus incomprehensible that the Chamber had not concluded that the Federal Supreme Court ’ s judgment was diametrically opposed to its own conclusion, given that it failed to take any account of such connections with Switzerland and focused only on the fact that the elements relating to the legal basis of the dispute were located abroad.
142. Lastly, the applicant argued that in the case of Arlewin v. Sweden (no. 22302/10, 1 March 2016), the Court had recently found a violation of the right of access to a court in a situation in which the domestic courts had denied the existence of a Swedish forum in a case concerning a television programme, the content and aim of which were exclusively directed at Sweden and adversely affected the reputation of Swedish nationals living in Sweden. He added that the situation had been such that the refusal by the Swedish court to accept jurisdiction had left the applicant with little choice but to apply to a foreign court, whose jurisdiction was not in dispute but which was manifestly inappropriate. The mere fact that the programme was broadcast by a British company operating on the territory of the United Kingdom did not in itself constitute a legitimate reason for maintaining that the appropriate forum was in the United Kingdom. The applicant submitted that the Arlewin judgment was important for the present case in so far as it had upheld the right of access to a (Swedish) court when it would also have been possible to bring the case before a court in the United Kingdom. He considered that the right to a fair trial had clearly tipped the balance in favour of Swedish jurisdiction.
143. With regard to the proportionality of the restriction on the right of access to a court, the Government also invited the Grand Chamber to follow the Chamber ’ s reasoning. As to the dissenting opinion, the Government accepted that in the fight against torture States had a responsibility, up to a point, to act as universal guardians of justice; however, they were convinced that the idea of assuming universal civil jurisdiction for acts of torture went beyond the limits of what a State governed by the rule of law could do, for the reasons set out below.
144. Providing for virtually unlimited civil jurisdiction on the part of a national judicial system would overburden the judicial authorities of any nation. It was therefore unsurprising that no European State appeared to have enacted a law providing for civil jurisdiction in situations similar to that of the applicant, or to have interpreted the forum of necessity rule, where applicable, in that manner.
145. The Government also pointed out that, while there were admittedly few cases in the Federal Supreme Court ’ s case-law concerning the application of section 3 of the LDIP, this provision had nonetheless not remained a dead letter. In particular, the cantonal courts had accepted its application in cases involving family law, successions and debt recovery and bankruptcy proceedings. It was thus established that the courts had applied the forum of necessity in very varied circumstances.
146. According to the Government, it followed from this case-law that the factors constituting a “sufficient connection” capable of establishing the jurisdiction of the Swiss authorities under section 3 of the LDIP were the Swiss nationality of the claimant in matters of family law or cases concerning a person ’ s status; the fact that the claimant or another party with a direct interest in the matter was resident in Switzerland, provided that the case came within the scope of family law; the location of property in Switzerland in cases concerning inheritance law; and, subject to certain conditions, the existence of a place of enforcement in Switzerland.
147. The case currently before the Grand Chamber was, however, very unusual, and the only one of its kind which had had to be decided by the Swiss courts. In the light of the latter ’ s practice, the Government concluded that the Federal Supreme Court ’ s application of it in the present case had been by no means exceptional and was in line with previous practice. It followed that the refusal to accept the forum of necessity envisaged in section 3 of the LDIP was far from being arbitrary or manifestly unreasonable.
148. With regard to the question of whether there existed a possible obligation to accept universal civil jurisdiction, the Government argued that international law and State practice seemed even less developed with regard to such an obligation. They emphasised that no European State had accepted such jurisdiction. The Government also submitted that none of the international instruments invoked by the applicant recognised this jurisdiction, particularly Article 16 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees, and that no rule of customary international law provided for it. They added that the text of Article 14 of the Convention against Torture contained no indication of any extraterritorial application of this rule, and that several judgments delivered by the domestic courts confirmed that Article 14 of the Convention against Torture contained no obligation to introduce universal civil jurisdiction for victims of torture (they referred, in particular, to UK House of Lords, Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya as Saudiya and others [2006] UKHL 26, and Court of Appeal for Ontario, Bouzari v. Iran, cited above (see paragraph 73 ). In consequence, the Government submitted that at the present time there was no apparent move in international law towards broadening the principle of universal jurisdiction to include civil proceedings. Lastly, they argued that the Committee against Torture ’ s practice could not serve as a solid basis from which to derive an obligation on the States to accept universal civil jurisdiction irrespective of any connection between a given case and these States, although the Committee ’ s General Comment no. 3 (2012) did seem to recommend such an interpretation.
149. With regard to the texts issued by the ILA and the IIL, the Government noted that these were the product of exclusively academic associations, and had no official weight. The Government further observed that these documents had been published in August 2012 (ILA) and on 30 August 2015 (IIL), that is, long after the Federal Supreme Court had delivered its judgment of 22 May 2007. As to the substance, the Government considered that the ILA Sofia Guidelines did not apply to the circumstances such as those in the present case, in so far as Article 1.1 limited the scope of application to civil claims against non-State actors. With regard to the IIL ’ s Tallinn Resolution, the Government stressed that Article 2. 1 used the conditional tense (“A court should exercise...”), which implied that the Resolution belonged to the domain of lex ferenda, rather than that of lex lata.
150. In the light of these considerations, the Government concluded that international law did not oblige Switzerland to deal with the applicant ’ s claim and that, accordingly, the Swiss courts ’ decisions had been in accordance with Article 6 § 1.
151. With regard to section 3 of the LDIP, the Government submitted that the Federal Supreme Court, in interpreting the three conditions for accepting a forum of necessity, had begun by noting the inexistence of an ordinary forum (first condition). It had left open the question of whether proceedings abroad had proved impossible (second condition), instead examining in greater depth the third condition, namely that of a “sufficient connection” between the applicant ’ s case and Switzerland.
152. Like the Federal Supreme Court, the Government noted that section 3 had to be interpreted restrictively, and stated that it represented a safety valve designed to prevent denials of justice in the event of a negative conflict of jurisdiction (Federal Supreme Court judgment, point 3.4; see paragraph 30 above). However, they added that the drafting history showed that the hypothetical situation of a foreign national whose case had no connection with Switzerland had indeed been envisaged in the parliamentary debates, but the idea of opening up the Swiss courts to such cases had been explicitly rejected, at the cost of being unable to avoid all denials of justice.
153. As to the question of what factors were capable of constituting a “sufficient connection”, the Government noted that the criterion of nationality had not been retained as one of those generally accepted as giving access to a forum of necessity. Although nationality could be a decisive criterion on which to base jurisdiction in Switzerland with regard to the law of persons and in certain areas of family law (and, to a lesser extent, the law of obligations), it did not constitute, in itself and in every case, a “sufficient connection” required by law.
154. In addition, the Government submitted that the question of which elements formed the constituent parts of a “case” also had a temporal dimension. In many cases the aim of legal action was to influence an existing factual situation and the question of which elements constituted the case related to the situation as it stood when the action was initiated. However, where an action concerned a set of circumstances which had ended before that action was initiated, the elements of the case had to be examined as they had stood at the material time, prior to the proceedings. When an element of the case was altered after the decisive set of circumstances had ceased to exist, that change was not part of the “case” and could thus no longer create a sufficient connection to warrant a forum of necessity.
155. With regard to the naturalisation procedure, the Government noted that this procedure could not influence the outcome of the case, because it too had occurred “subsequent to the cause of action” (the Federal Supreme Court ’ s judgment, point 3.5). Based on the approach adopted by the Federal Supreme Court, his naturalisation could not be treated differently from the other factors relied upon by the applicant, namely his residence in Switzerland, his refugee status and the fact that he was receiving welfare benefits. The Government further submitted that it was not to be assumed that the Federal Supreme Court had been aware that the naturalisation procedure was under way. In any event, no mention was made of that procedure in the appeal documents, which indicated, in the Government ’ s view, that the applicant himself had not considered this detail as an argument for applying the forum of necessity.
156. In the light of the foregoing, the Government concluded that while the courts had admittedly applied the forum of necessity in very varied circumstances, none of them seemed comparable with the instant case. All of the acts with regard to whose after-effects the applicant, a Tunisian national at the material time, was seeking compensation for non-pecuniary damage, had allegedly been inflicted on him in Tunisia, by the Tunisian State and its officials, and were totally unconnected with Switzerland. In those circumstances, the Government considered that the refusal to accept the forum of necessity provided for in section 3 of the LDIP had been by no means arbitrary or manifestly unreasonable.
157. The United Kingdom considered that the Chamber had carried out a careful analysis of the international and comparative law with regard to international jurisdiction, and they were in full agreement with its conclusions. They endorsed the Chamber ’ s opinion that none of the 26 States Parties studied in the course of the Court ’ s survey provided for universal civil jurisdiction in respect of acts of torture (see Chamber judgment, § 49).
158. They also submitted that Article 14 of the Convention against Torture did not oblige the States Parties to establish universal jurisdiction. They shared the Chamber ’ s view that the text of that provision was not clear on this point, and that the travaux préparatoires also failed to shed light on this question (see Chamber judgment, § 117).
159. The United Kingdom also considered that the Chamber judgment had correctly reflected the conclusions reached in the Jones v. Saudi Arabia case ([2006] UKHL 26), in which the House of Lords had held that Article 14 of the Convention against Torture did not provide for universal civil jurisdiction, which would operate as an exception to State immunities (see Chamber judgment, § 51).
160. Lastly, the third-party intervener considered that the proper administration of justice and the effectiveness of judicial decisions were legitimate aims that could guide the States in deciding whether to exercise universal civil jurisdiction. They further added that the applicant ’ s argument concerning the rarity of cases of this nature in the national courts did nothing to diminish the practical difficulties caused by cases such as that of the applicant.
(β) Amnesty International and the International Commission of Jurists
161. Amnesty International and the International Commission of Jurists submitted that Article 14 of the Convention against Torture, interpreted first of all in the light of its plain meaning, did not provide for any geographical limitation to its application. Such an approach had moreover been confirmed by the Committee against Torture in its General Comment no. 3, referred to above, and by Juan E. Méndez, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, according to whom “[a]rticle 14 [was] not geographically limited on its face and [would] apply no matter where the torture [took] place” (Interim Report, 7 August 2015, UN Doc. A/70/303, § 56).
162. The third-party interveners considered that such an approach was corroborated by the States ’ practice. They noted that, of the 160 States Parties to the Convention against Torture, only the United States had placed a reservation on the geographical scope of Article 14.
163. The third-party interveners also submitted that the travaux préparatoires for Article 14 of the Convention against Torture argued in favour of universal jurisdiction. They indicated that a proposal by the Netherlands to insert the words “committed in any territory under its jurisdiction” after the word “torture” had been rejected. They concluded that the intention of the States which had negotiated the Convention had been not to limit the geographical scope of Article 14.
164. The third-party interveners further submitted that, according to a preliminary survey by Amnesty International on universal jurisdiction in 2012, no less than 147 out of the 193 member States of the United Nations had provided for universal jurisdiction over one or more international crimes (genocide, crimes against humanity, war crimes, torture, enforced disappearances and extrajudicial executions) (Universal Jurisdiction: a Preliminary Survey of Legislation around the World – 2012 Update (IOR 53/019/2012)).
165. Lastly, the third-party interveners referred to the European Commission ’ s amicus curiae brief, submitted to the Supreme Court of the United States in the case of Kiobel v. Royal Dutch Petroleum Co ., dated 13 June 2012. In it, the Commission held as follows (references omitted):
“ 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 .”
166. The Redress Trust and the OMCT noted that certain States Parties to the Convention recognised the forum of necessity. They stressed that this growing recognition was also reflected in the Guidelines on best practice for international civil litigation for human rights violations, adopted by the ILA in August 2012 and referred to above (see paragraph 66).
167. The third-party interveners argued that universal jurisdiction was a principle enshrined in international law, based on an international consensus that certain crimes, including torture, constituted crimes under international law and that the perpetrators of those crimes had to be held accountable, irrespective of where the crime had been committed and of the nationality of the perpetrator. They added that international law also recognised that victims of serious human rights violations had a right to an effective remedy and to reparation.
168. The third-party interveners noted that many States Parties to the Convention permitted victims of serious international crimes to seek monetary compensation by way of civil-party actions within criminal proceedings based on universal jurisdiction, and that at least ten of those States had initiated criminal proceedings on such a basis.
169. The third-party interveners concluded that the cases in which States Parties to the Convention had awarded compensation to victims of torture and of other serious human-rights violations on the basis of universal jurisdiction not only illustrated a trend towards recognising victims ’ rights on the basis of universal jurisdiction, but also showed that notwithstanding the practical difficulties, such proceedings were feasible and were often the sole method available for victims to access justice.
170. Citizens ’ Watch reiterated that the Convention had to be read as a whole. In consequence, the third-party intervener considered that the complaint lodged by the applicant, namely the right of effective access to a court, was intrinsically linked with the prohibition of torture enshrined in Article 3 of the Convention. In other words, the prohibition of torture, which was “part of the very essence of the Convention” (citing Khlaifia and Others v. Italy [GC], no. 16483/12, § 158, ECHR 2016), should inform the Court ’ s interpretation of Article 6 § 1 of the Convention in the present case.
171. Citizens ’ Watch also reiterated that Article 3 established a procedural obligation on States Parties to the Convention to carry out an effective investigation into credible allegations of ill-treatment within the meaning of that provision. Although Article 3 was generally understood as requiring criminal investigations, nothing precluded other types of judicial proceedings – including, for example, civil or disciplinary proceedings against those individuals who were allegedly implicated in torture – from being taken into account.
172. As to other sources of international law, Citizens ’ Watch did not consider that Article 14 of the Convention against Torture required States Parties to establish universal civil jurisdiction. However, it considered that victims of torture should be provided with access to court where there existed a tangible link with the forum State, such as residence or the presence of the party to the prospective proceedings, or the presence of the potential defendant ’ s assets.
173. With regard to the proportionality of the restriction on the right of access to a court, the Court reiterates that the State enjoys a certain margin of appreciation in regulating this right (see paragraph 114 above). In cases such as the present one, the scope of this margin depends, inter alia, on the relevant international law in this area. It is therefore necessary to examine this point before considering the application of section 3 of the LDIP in the present case.
174. In this connection, the Court reiterates that the provisions of the Convention cannot be interpreted and applied in a vacuum. Despite its specific character as a human rights instrument, the Convention is an international treaty to be interpreted in accordance with the relevant norms and principles of public international law, and, in particular, in the light of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”). Thus the Court has never considered the provisions of the Convention to be the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see, for example, Golder, cited above, § 29; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131, ECHR 2010; Nada v. Switzerland [GC], no. 10593/08, § 169, ECHR 2012; and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 138, ECHR 2016).
175. Moreover, in cases involving issues that are subject to constant developments in the Council of Europe member States, the Court may examine the situation in other member States in respect of the issues at stake in a given case in order to assess whether there exists a “European consensus” or at least a certain trend among the member States (see, mutatis mutandis, Bayatyan v. Armenia [GC], no. 23459/03, § 122, ECHR 2011; Hämäläinen v. Finland [GC], no. 37359/09, §§ 72-75, ECHR 2014; and Magyar Helsinki Bizottság, cited above, § 138).
(α) Relevant international law and the resulting margin of appreciation in the present case
176. Like the Chamber, the Court discerns two concepts of international law that are relevant for the present case: the forum of necessity and universal jurisdiction. Although the applicant submitted before the Grand Chamber that he was not relying on universal jurisdiction, the Grand Chamber considers that, in substance, his arguments come very close to such an approach. However, before assessing the impact of these two concepts in the present case, it is appropriate to differentiate between them.
177. “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. In private international law, the universal nature of jurisdiction refers to an absence of the required connection between the jurisdiction applied to and the “case” or impugned situation.
178. The Court considers that, unlike in civil matters, universal jurisdiction is relatively widely accepted by the States with regard to criminal matters, a situation which is reflected in the fact that Article 5 § 2 of the Convention against Torture clearly provides for universal jurisdiction in criminal matters, in contrast to Article 14, which is more ambiguous with regard to its geographical scope (see paragraphs 45 et seq. above).
179. In the concept ’ s absolute form, universal jurisdiction does not depend on any connecting factor ratione personae determining the persons subject to the court exercising such jurisdiction (Report by Andreas Bucher, cited above, § 181). Nor does it depend on a connecting factor ratione loci, requiring that this jurisdiction be exercised only in the presence of certain ties – geographical or otherwise related to place – with the jurisdiction applied to in a specific case (ibid.).
180. In relation specifically to this last element, namely the lack of a tie with the jurisdiction in question, universal jurisdiction, in its absolute form, differs from the concept of the forum of necessity. “Forum of necessity” refers to the exceptional (or residual) jurisdiction assumed by a State ’ s civil courts which would not normally have jurisdiction to examine a dispute under the general or special rules on jurisdiction laid down by that State ’ s law, where proceedings abroad prove impossible or excessively and unreasonably difficult, in law or in practice.
181. In view of these considerations, the Court will now examine whether the Swiss authorities were legally bound to open their courts to the applicant, by virtue either of universal civil jurisdiction for torture, or of the forum of necessity. The conclusions drawn from that assessment will serve to determine the scope of the margin of appreciation enjoyed by those authorities in this case.
- Whether the Swiss authorities were obliged to open their courts to the applicant by virtue of universal civil jurisdiction for acts of torture
182. The Court reiterates that Article 38 of the Statute of the International Court of Justice sets out the formal sources of international law. With regard to the present case, it considers it appropriate to examine whether Switzerland was bound to recognise universal civil jurisdiction for acts of torture by virtue of an international custom, or of treaty law. It is necessary to examine these two possibilities successively.
183. With regard to a possible international custom, it transpires from the comparative legal study conducted by the Court that, of the 39 European States examined, only the Netherlands recognise universal civil jurisdiction in respect of acts of torture; however, this was not enshrined in the case-law until after the Federal Supreme Court ’ s judgment in the present case, delivered on 22 May 2007 (see the cases of El-Hojouj v. Amer Derbas and Others and Akpan, of 2012 and 2013 respectively ( paragraph 69 above)). Furthermore, at least in the Akpan case, there existed a solid connecting link with the Netherlands, in that the entity against which proceedings were brought before the Netherlands courts was a subsidiary of a company established under the authority of that State. It is not therefore possible to speak of universal jurisdiction in an absolute sense in respect of that case.
184. Outside Europe, universal civil jurisdiction is recognised only in the United States, under two federal laws, and also in Canada, provided in the latter case that the claimant can demonstrate that the torture took place in the context of a terrorist act (see paragraph 73 above).
185. Moreover, according to the information available to the Court, several member States of the Council of Europe provide for the universal jurisdiction of their courts in criminal matters, and allow a claimant in such cases to apply, as a civil party, to join the proceedings brought before a criminal court (see paragraphs 79-83 above). The Court notes that the possibility of joining a compensation claim to ongoing criminal proceedings presents fewer practical difficulties, given that such a claim can rely on the advantages inherent in the criminal proceedings, such as the institution and pursuit of the proceedings, of its own motion, by the competent prosecuting authority, or the centralised establishment and assessment of the facts and evidence as part of the investigation carried out by that authority. It is therefore natural and legitimate for the States to accept more easily such a procedure, namely joining the proceedings as a civil party, without however recognising universal jurisdiction in the context of autonomous civil proceedings. In any event, the Court points out that in the present case the applicant lodged a criminal complaint in 2001 and applied to join the proceedings as a civil party, but that the complaint was discontinued on the ground that A.K., the presumed perpetrator of the acts of torture, had left Swiss territory.
186. The Court further observes that the States referred to in the European Commission ’ s amicus curiae brief in the above-cited Kiobel case (see paragraph 165 above), referred to by Amnesty International and the International Commission of Jurists, accept universal jurisdiction provided that the civil-party actions are brought within criminal proceedings. In the present case, however, the applicant lodged his civil action for damages in 2004, separately from any criminal proceedings. Moreover, Amnesty International ’ s preliminary survey on universal jurisdiction worldwide, published in 2012, concerns primarily universal jurisdiction in the criminal sense of the term, and not in the civil sense, which is the only one in issue in the present case (see paragraph 164 above).
187. In the light of these considerations, it has to be concluded that those States which recognise universal civil jurisdiction – operating autonomously in respect of acts of torture – are currently the exception. Although the States ’ practice is evolving, the prevalence of universal civil jurisdiction is not yet sufficient to indicate the emergence, far less the consolidation, of an international custom which would have obliged the Swiss courts to find that they had jurisdiction to examine the applicant ’ s action.
188. The Court considers that, as it currently stands, international treaty law also fails to recognise universal civil jurisdiction for acts of torture, obliging the States to make available, where no other connection with the forum is present, civil remedies in respect of acts of torture perpetrated outside the State territory by the officials of a foreign State.
189. Admittedly, the Committee against Torture has advocated, especially in General Comment no. 3 (2012), an extensive interpretation of Article 14 of the Convention against Torture, which provides that each State Party must ensure in its legal system that the victim of an act of torture is entitled to obtain redress and to enjoy an enforceable right to fair and adequate compensation (see paragraphs 52-53 above). It has encouraged the States to offer such a remedy also in situations in which the act of torture was perpetrated outside the State ’ s territory, including, it seems, by officials of a foreign State (ibid.).
190. The Court notes, however, that the Committee against Torture seems more reserved on this question in its examination of individual communications (see, in particular, the relevant cases referred to in paragraphs 54-55 above). In any event, so far as the Court is aware, the Committee has never found a violation of the Convention against Torture by a State Party on the ground that it failed to recognise universal civil jurisdiction in its domestic legal order. In any case, the applicant does not allege this.
191. As to the other arguments advanced by Amnesty International and the International Commission of Jurists on the basis of Article 14 of the Convention against Torture (see paragraphs 161-64 above), these are not accepted by the Court, for the following reasons. With regard firstly to the text of this provision, it must be observed that Article 14, which enshrines in a general manner the right of victims of torture to obtain redress, is silent on how this right is to be implemented effectively and on the geographical scope of the States Parties ’ obligations to that end. It cannot therefore be claimed that the text of Article 14 amounts, in itself, to an argument in favour of universal civil jurisdiction. Indeed, this was already the Chamber ’ s view (see Chamber judgment, § 117).
192. With regard to the travaux préparatoires, the Court notes firstly that, in accordance with Article 32 of the Vienna Convention, these are only a “supplementary means” of interpretation of treaties. It is thus necessary to take them into account on a subsidiary basis and with a certain restraint when interpreting the terms of a treaty (see, to similar effect, the prudence expressed by the ICJ in the Case of Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility (judgment, ICJ Reports 1995, § 41). [1] The Court further points out that the Chamber concluded that no concrete element could be derived from the travaux préparatoires for the Convention against Torture with regard to the geographical scope of Article 14 (see Chamber judgment, § 117). Having studied the matter itself, the Grand Chamber shares this opinion. Admittedly, the proposal by the Netherlands to include the words “committed in any territory under its jurisdiction” had disappeared when the Convention was adopted. However, the reasons for this omission remain unknown (see Manfred Nowak/Elizabeth McArthur, op.cit ., paragraph 49 above). In those circumstances, it is difficult to attach decisive importance to it. It cannot therefore be concluded from the travaux préparatoires that the authors of the Convention against Torture intended to accept universal jurisdiction in the framework of Article 14.
193. In this context, Amnesty International and the International Commission of Jurists have also argued that the absence of reservations to Article 14, with the exception of one reservation by the United States, is an indication of the States Parties ’ acceptance of universal civil jurisdiction. The Court does not share this view either. It cannot be ruled out that, faced with a text which makes no mention of this scenario and with travaux préparatoires which are almost silent on the subject, the States simply did not envisage the possibility of universal jurisdiction and, accordingly, did not feel obliged to enter reservations to Article 14 in order to exclude such jurisdiction from its scope.
194. Admittedly, certain non-legally binding documents have recently been adopted, recommending that the States guarantee effective access to justice for victims of torture. According to these documents, if the State in which an act of torture has taken place does not provide redress to the victim, the courts of third States are encouraged to find that they have jurisdiction in order to prevent a denial of justice, for example by accepting universal jurisdiction.
195. These texts include, in particular, the Resolution adopted by the IIL in Tallinn on 30 August 2015 (see paragraph 62 above). The Court notes, however, that, although the “right to appropriate and effective reparation” for victims of international crimes and their “right to an effective access to justice to claim reparation” are firmly asserted in Article 1 §§ 1 and 2 of the Resolution, its wording is more hesitant on the question of whether there exists a general obligation on States ’ courts to exercise their jurisdiction to examine victims ’ reparation claims in cases where no other State has stronger connections with the dispute. Indeed, the use of the conditional tense in Article 2 § 1 seems to suggest that this is a matter of lex ferenda rather than of positive law.
196. In addition, in his report in support of the Resolution, the IIL ’ s rapporteur expressed the view that Article 14 of the Convention against Torture does not impose universal civil jurisdiction in the area of international crimes (see §§ 65 and 66 of the report, quoted in paragraph 63 above). Equally, academic opinion does not appear to be unanimous on whether Article 14 of the Convention against Torture must have extra ‑ territorial applicability, even where the act of torture was perpetrated by officials of a foreign State (see paragraphs 56-58 above).
197. Lastly, in so far as the applicant, as a recognised refugee in Switzerland, relies on Article 16 of the United Nations Convention relating to the Status of Refugees (see paragraph 60 above), the Court notes that before the Federal Supreme Court he simply referred, in very general terms, to this provision, without explaining for what reason and in what respect it could have been relevant to the complaint forming the subject of the present application. The Court observes, however, that the text of Article 16 refers in general terms to the right of refugees to have access to a court, but does not guarantee as such the right to bring proceedings against a foreign State or one of its officials for acts of torture committed abroad. In consequence, even supposing that the applicant had duly raised this complaint before the domestic courts, he cannot extract an additional argument from it in support of his application.
198. 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.
- Whether the Swiss authorities were obliged to open their courts to the applicant by virtue of the forum of necessity
199. The Court observes that, before both the Chamber and the Grand Chamber, the applicant has essentially based his complaint on the forum of necessity within the meaning of section 3 of the LDIP and criticises the allegedly overly restrictive manner in which the Federal Supreme Court interpreted that provision in the judgment forming the subject of the present application. At this stage, the Court must therefore determine whether international law imposed an obligation on the Swiss authorities to make a forum of necessity available to the applicant so that the compensation claim in respect of the alleged damage sustained as a result of human-rights violations could be examined. It will consider, in succession, comparative law, with a view to discerning the possible existence of an international custom, then international treaty law.
200. Firstly, it transpires from the study conducted by the Grand Chamber that, of the 40 States examined, including Switzerland, 28 European States do not recognise the forum of necessity. It exists in only 12 of the States studied, including Switzerland (see paragraph 84 above). In addition, it has only recently been recognised and is subject to strict conditions in Canada. In contrast, the countries with an Anglo-American tradition do not recognise the concept. On the contrary, they apply the principle of forum non conveniens, which enables a court to refuse to examine a case if a court of another State has a more appropriate connection (see paragraph 90 above).
201. In view of the above considerations and the fact that the concept of a forum of necessity is not generally accepted by the States, it cannot be concluded that there exists an international custom rule enshrining the concept of forum of necessity.
202. The Court further notes that there is also no international treaty obligation obliging the States to provide for a forum of necessity.
- The scope of the margin of appreciation in the present case
203. In the light of the foregoing considerations, the Court concludes that international law did not impose an obligation on the Swiss authorities to open their courts with a view to ruling on the merits of the applicant ’ s compensation claim, on the basis of either universal civil jurisdiction in respect of acts of torture, or forum of necessity. It follows that the Swiss authorities enjoyed a wide margin of appreciation in this area.
204. It must therefore be ascertained at this stage whether that margin of appreciation was overstepped in the present case.
(β) Whether the Swiss authorities exceeded their margin of appreciation in the present case
205. In order to determine whether the Swiss authorities exceeded their margin of appreciation in the present case, the Court must examine, in turn, section 3 of the LDIP and the relevant decisions of the Swiss courts, particularly the Federal Supreme Court ’ s judgment of 22 May 2007.
206. With regard to section 3 of the LDIP, the Court notes at the outset that the mere fact of introducing a forum of necessity, designed as it is to widen the jurisdiction of the national courts rather than reduce it, clearly cannot constitute overstepping by the legislature of its margin of appreciation.
207. As to the criteria laid down by the Swiss legislature for the implementation of section 3 of the LDIP in a given case, the comparative ‑ law study referred to above indicates that in all the States which do recognise the forum of necessity, it is applied only exceptionally and subject to two cumulative conditions, namely the absence of another forum with jurisdiction, and the existence of a sufficient connection between the case and the State which assumes jurisdiction (see paragraphs 88-89 above). The same two conditions are also found in the European Union law referred to above (see paragraphs 91-93). With regard to the connecting link, the Court observes that the relevant texts do not lay down the criteria to be used, leaving this task to the domestic courts. In this respect, therefore, section 3 of the LDIP corresponds fully to the notions prevailing in this area.
208. The Court concludes that by introducing a forum of necessity with the criteria laid down in section 3 of the LDIP, the Swiss legislature did not exceed its margin of appreciation.
209. Turning now to the margin of appreciation of the domestic courts, the Court reiterates that in those States which recognise the forum of necessity, the courts enjoy considerable discretion in defining the connecting links and applying them on a case-by-case basis. In so doing the domestic courts most frequently take account of the nature of the dispute or the identity of the parties (see paragraph 89 above). It is on the basis of these elements that the Court will examine whether the Federal Supreme Court exceeded its margin of appreciation in the present case when interpreting section 3 of the LDIP.
210. In this connection, it should be reiterated at the outset that it is in the first place for the national authorities, and notably the courts, to interpret and apply domestic law (see paragraph 116 above).
211. The applicant criticises, first and foremost, the fact that the Federal Supreme Court considered that it had to have regard to matters as they stood at the material time, namely in 1992, in assessing whether it had jurisdiction. He considers that the Federal Supreme Court was wrong in failing to take account of the ties subsequently formed by him with Switzerland.
212. On this point, the Court notes that, according to the Federal Supreme Court, the term “case” (French “ cause ”) must be understood in the restricted sense of “set of facts”. In other words, it is the alleged facts – and not the person of the claimant which must have a sufficient connection with Switzerland (see the judgment of 22 May 2007, point 3.5, paragraph 30 above). With regard to the case and the application of section 3 of the LDIP, the Government also argued that the appropriateness of creating a general forum of necessity, accessible also to foreigners who had no connection with Switzerland, had been discussed when drafting this section, but it had been decided not to pursue that option.
213. According to the Government, the question of which elements form the constituent parts of a “case” also had a temporal dimension (see paragraph 154 above). Where an action concerned a set of circumstances which had ended before that action was initiated, the elements of the case must be examined as they stood at the material time, before the proceedings had begun. In consequence, when an element of the case was altered after the decisive set of circumstances ceased to exist, that change was not part of the “case” and could thus no longer create a sufficient connection to warrant a forum of necessity.
214. Having regard to the wide margin of appreciation granted to the national courts in this area and in the light of the relevant practice of the Swiss courts as described above (see paragraphs 40-44), the Court perceives no arbitrary or manifestly unreasonable elements in the Federal Supreme Court ’ s interpretation of section 3 of the LDIP in the present case. Although certain court rulings seem to indicate that the decisive date for application of section 3 of the LDIP is the point at which the action was lodged, these do not, in the Court ’ s view, enable any decisive conclusions to be drawn. The domestic case-law on this question is relatively limited and concerns very diverse cases, including continuing situations that cannot be compared with the applicant ’ s case.
215. Lastly, in so far as the applicant relies on the judgment in Arlewin v. Sweden (cited above) in support of his argument that the refusal to examine his action was disproportionate (see paragraph 142 above), the Court considers that there were several clear and strong connecting links between the claim brought by the applicant in the Arlewin case and Sweden. It concerned defamation proceedings brought in respect of a television programme, the content of which focused exclusively on Sweden and which adversely affected the reputation of Swedish nationals who were resident in Sweden. The question of a possible forum of necessity did not therefore arise. Accordingly, the Court considers that the applicant, whose action for damages involved no connection with Switzerland at the time of the relevant events, cannot usefully rely on that case.
216. In the light of the above considerations, the Court perceives no arbitrary or manifestly unreasonable elements (see paragraph 116 above) in the Federal Supreme Court ’ s interpretation of section 3 of the LDIP. Moreover, it discerns no elements indicating that the Federal Supreme Court exceeded its margin of appreciation in another manner. Accordingly, the restrictions on the applicant ’ s right of access to a court were not disproportionate to the legitimate aims pursued.
217. Having regard to the foregoing, the Court considers that the Swiss courts ’ refusal, in application of section 3 of the LDIP, to accept jurisdiction to examine the applicant ’ s action seeking redress for the acts of torture to which he was allegedly subjected pursued legitimate aims and was not disproportionate to them. Accordingly, there has been no violation of the right of access to a court within the meaning of Article 6 of the Convention.
218. That being so, 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. In this respect, the efforts by States to make access to a court as effective as possible for those seeking compensation for acts of torture are commendable.
219. However, it does not seem unreasonable for a State which establishes a forum of necessity to make its exercise conditional on the existence of certain connecting factors with that State, to be determined by it in compliance with international law and without exceeding the margin of appreciation afforded to the State under the Convention.
220. Nonetheless, given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it.
1. Holds, by sixteen votes to one, that Article 6 § 1 is applicable in the present case;