European Court Delivers Landmark Judgment on Universal Jurisdiction & Torture
On March 15, the European Court of Human Rights (ECtHR) issued a landmark decision finding that States are not required to allow victims of torture to sue perpetrators in civil proceedings, in the absence of criminal proceedings, for compensation when the act of torture occurred outside of the territory of the State and the perpetrators are not nationals and are domiciled abroad. See ECtHR, Naït-Liman v. Switzerland [GC], no. 51357/07, ECHR 2018, Judgment of 15 March 2018, paras. 97, 217. Accordingly, the ECtHR Grand Chamber held that States are not obligated under international law to exercise universal civil jurisdiction over acts of torture. See id. at para. 203. Universal civil jurisdiction is the power of a domestic court to resolve claims for monetary compensation without there being any connection between the State where the case is brought and the underlying facts of the case. See id. at para. 177. Although the ECtHR recognized that States were obligated to exercise universal criminal jurisdiction over acts of torture, the ECtHR found that there was no similar obligation for civil claims that are wholly separate from a criminal proceeding. See id. at para. 97. This decision diverges from the position taken by the United Nations Committee against Torture (CAT) and various international human rights organizations, including Amnesty International, the International Commission of Jurists, Redress Trust, and the World Organization Against Torture. See id. at paras. 52-53, 161, 167-68. The CAT maintains that States are obligated to award reparations for acts of torture, even if the torture occurs outside of the territory of the State, and to ensure that civil liability and redress is “available independently of criminal proceedings.” See id. at paras. 52-53, 161, 167-68; CAT, General Comment No. 3 (2012), UN Doc. CAT/C/GC/3, 13 Dec. 2012, paras. 22, 26.
Abdennacer Naït-Liman is a Tunisian national who obtained asylum and nationality in Switzerland after suffering torture in Tunisia at the hands of Tunisian authorities. See Naït-Liman v. Switzerland [GC], Judgment of 15 March 2018, paras. 12, 15-18. Upon learning that the Tunisian Minister of the Interior, the one who ordered that Naït-Liman be subjected to torture, was receiving medical treatment in Switzerland, Naït-Liman filed a complaint against the Minister in Swiss court seeking compensation for the injuries he received as the result of the Minister’s orders, a civil claim under Swiss law. See id. at para. 15, 19, 22-23, 110. Before reaching the merits, the Swiss trial court dismissed Naït-Liman’s claim on the grounds that the court lacked jurisdiction over his claim because the torture took place outside of Switzerland and the defendant does not reside in Switzerland. See id. at para. 25. Naït-Liman appealed the trial court’s dismissal twice within Switzerland, to no avail, after which he brought the case before the ECtHR. See id. at paras. 1, 23, 29.
The Relevant Law
In his appeal to the ECtHR, Naït-Liman alleged that Switzerland’s dismissal of his claim violated his rights under Article 6 (right to access a court) of the European Convention on Human Rights. See id. at para. 2. Under Article 6, a State may limit an individual’s access to a court only if, first, the limitation serves a legitimate aim and, second, there is a reasonable relationship of proportionality between the legitimate aim and the means sought to achieve the legitimate aim. See id. at para. 115.
Additionally, relevant to the question of whether Switzerland was wrong to deny Naït-Liman’s claim is whether international law requires that States extend universal civil jurisdiction over torture claims. See id. at para. 181. One of the strongest sources in support of universal civil jurisdiction is Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which requires States parties to the Convention to “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.” See id. at paras. 188-89.
The ECtHR’s Decision
The ECtHR first found that Switzerland limited Nait-Liman’s right to access a court when the Swiss court dismissed his claim. See id. at para. 117. Under Article 6 of the European Convention, a limitation on Article 6 rights must serve a legitimate aim and be reasonably proportionate to that aim. See id. The ECtHR then determined that Switzerland’s purported interest in both preserving the proper administration of justice and maintaining the effectiveness of domestic judicial decisions was legitimate due to the difficulties that arise from the exercise of universal civil jurisdiction; the Court recognized the challenge to the Swiss courts of gathering and assessing evidence of events outside of its jurisdiction, enforcing such a judgment, and preventing plaintiffs from forum shopping. See id. at paras. 122-128.
The remaining issue for the ECtHR was whether Switzerland’s refusal to exercise universal civil jurisdiction over acts of torture was proportionate to Switzerland’s interest in ensuring the proper administration of justice. See id. at para. 128. Whether the restriction was proportionate turned on whether international law, including Article 14 of the Convention against Torture, required States to adopt universal civil jurisdiction for acts of torture, or whether Switzerland had an obligation to recognize the principle of the forum of necessity. See id. at paras. 173, 180. Under the latter, a State would exercise jurisdiction over a case where its domestic law would normally bar it from doing so because forums outside of that State are not available to the plaintiff. See id. at para. 180. With regards to the former, the ECtHR recognized that commentators disagree over whether Article 14 of the Convention against Torture contains an obligation imposed on States parties to exercise universal civil jurisdiction over torture, or in other words, whether victims of torture may enforce their Article 14 right to redress through compensation in civil court when there is no nexus between the State and the act of torture. See id. at paras. 56, 97. In determining how to interpret Article 14, the ECtHR took note of the position of experts and civil society organizations. See id. at paras. 157-72.
UN Committee against Torture
The ECtHR considered the position of the Committee against Torture, the UN treaty body charged with overseeing the implementation of the Convention against Torture. See id. at para. 189. Specifically, the ECtHR considered CAT’s General Comment no. 3, which states that the Article 14 right to redress and to fair and adequate compensation applies in cases in which the torture occurred outside of the State’s territory and by officials of a foreign state. See id. at paras. 52-53, 189. The Court noted, though, that the Committee against Torture has never found a violation of the Convention based on the failure to provide for universal civil jurisdiction over allegations of torture. See id. at paras. 52-53, 190.
In a third-party brief, Amnesty International and the International Commission of Jurists argued that Article 14 should be interpreted in light of its plain language, which does not contain a restriction based on geographic scope. See id. at para. 161. Furthermore, they argue that this interpretation is supported by the CAT’s General Comment No. 3, by the practice of 147 States to provide for universal jurisdiction over international crimes, and by the lack of reservations to Article 14 on geographic scope; only the United States has a reservation to that effect. See id. at paras. 161, 164. Redress Trust and the World Organization Against Torture separately argued that many States parties to the Convention against Torture provide for civil parties to join criminal proceedings occurring on the basis of universal criminal jurisdiction and provide redress for victims of torture, despite the administrative and evidentiary difficulties these cases may pose. See id. at paras. 79-83, 169.
The ECtHR’s Determination
The ECtHR held that there is no obligation under international law on Switzerland to exercise universal civil jurisdiction over claims for reparations based on torture committed abroad that are separate from criminal proceedings. The Court found that Article 14 of the Convention against Torture does not require States parties to exercise universal civil jurisdiction. See id. at paras. 190-91. Notably, the Court determined that Article 14 “is silent on how [the right to redress for torture] is to be implemented effectively” and silent on the geographic scope.
With respect to State practice, the ECtHR found that while the exercise of universal criminal jurisdiction is common, universal civil jurisdiction is less common with only three States, the Netherlands, the United States, and Canada, offering some form of universal civil jurisdiction that operates separately from criminal proceedings. See id. at paras. 183-84. The Court noted that several States allow for a civil party to seek compensation within criminal proceedings and that this method allows the domestic court to benefit from the investigations and prosecution of the criminal case and eases the burden of the difficulties of exercising universal civil jurisdiction. See id. at para. 185.
Additionally, the Court held that there is not a State practice on recognizing the forum of necessity, and no international treaty requires it. See id. at paras. 200-202. Given that Switzerland was not violating international law by refusing to hear civil claims for reparation for torture committed abroad by another State’s authorities, the ECtHR determined that the Swiss court’s dismissal of Naït-Liman’s claim was proportional to the State’s interest in preserving the administration of justice. See id. at paras. 203, 216.
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