CASE OF NAIT-LIMAN v. SWITZERLAND
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano
6. The applicant was born in 1962 in Jendouba, in the Tunisian Republic (“Tunisia”), and lives in Versoix in the Canton of Geneva. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. 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 according to which he represented a threat to Italian State Security. He was then allegedly taken to Tunis by Tunisian agents. 9. 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 his entire 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. 10. The applicant submits that he suffers from a series of medically attested physical and psychological injuries and problems, and that a causal link between the abuse described and these injuries and problems has been considered plausible. 11. Following the alleged torture in Tunisia in 1992, the applicant fled that country in 1993 and took refuge in Switzerland, where he applied for political asylum in the same year. The applicant has since been living in the Canton of Geneva. 12. On 8 November 1995 the Swiss authorities granted the applicant political asylum. 13. On 14 February 2001, while A.K. was being treated in a Swiss hospital, the applicant lodged a criminal complaint against him with the Principal Public Prosecutor for the Canton of Geneva (“the Principal Public Prosecutor”), for severe bodily injury, illegal confinement, insults, endangering health, coercion and abuse of authority. The applicant applied to join these proceedings as a civil party seeking damages. 14. 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. 15. According to the applicant, on 22 July 2003 he “[asked] a Tunisian lawyer to represent him with a view to bringing civil proceedings 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. 16. By a writ dated 8 July 2004, the applicant lodged a claim for damages with the Canton of Geneva Court of First Instance (“the Court of First Instance”) against Tunisia and against A.K. He considered that he should be paid 200,000 Swiss francs (CHF), with 5% interest from 1 June 1992, as compensation for 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 Article 133 al. 2 of the LDIP, were met. 17. On 9 June 2005 a hearing was held before the Court of First Instance; neither of the defendants was in attendance or represented. 18. In a judgment of 15 September 2005, the Court of First Instance declared the claim inadmissible on the ground 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 Federal Law on Private International Law of 18 December 1987 (LDIP; see paragraph 24 below)].” Under section 3 of the Federal Law on Private International Law of 18 December 1987 (LDIP; see paragraph 24 below) the Swiss courts did not have jurisdiction by necessity either, 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 for 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, in the premises of the Tunisian Ministry of the Interior, by the Tunisian State and its agents. The sole fact that the claimant applied for and received political asylum in 1995 in Switzerland, where he has since been domiciled, does not amount, in the light of current case-law, to a sufficient connection enabling a “forum of necessity” to be established against the respondents in Switzerland and Geneva.” 19. By a writ dated 16 November 2005, the applicant appealed against that decision before the Court of Justice of 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 Cantonal Court considered: “As the outcome of the present appeal depends on the immunity from jurisdiction of the defendant parties, the question of whether there exists a forum of necessity in the appellant’s place of residence can, however, remain undecided.” 20. The Cantonal Court also held that the defendants enjoyed immunity from jurisdiction, since the acts of torture had been performed in the exercise of sovereign authority (iure imperii) and not 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 2001XI), it further considered that there had been no violation of the applicant’s right of access to a court. 21. The applicant lodged an ordinary appeal with the Federal Court, dated 20 October 2006, in which he asked the Federal Court to rule that the courts in 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 24 below) was 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 the option of committing international crimes such as torture. In this connection, he specified 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 26 et seq. below) ruled out any immunity. 22. By a judgment of 22 May 2007, the reasoning of which was notified to the applicant on 7 September 2007, the Federal Court dismissed the appeal. Reiterating the reasoning in the first-instance judgment, the Federal Court considered that the Swiss courts did not in any event have territorial jurisdiction. The relevant passages of the Federal Court’s judgment read as follows: “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 insofar 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 – is difficult to achieve, this legal provision has not in practice been without effect; the cantonal courts in particular have recognised its applicability it in the areas of family law, inheritance and proceedings on debt-enforcement and bankruptcy... Moreover, legal writers have noted that the subsidiary forum must necessarily be recognised in situations of political persecution... In contrast, the case-law and legal writings shed scarcely any light with regard to a civil action for compensation in respect of damage resulting from crimes against humanity, life and physical integrity, committed aboard, by foreign perpetrators. 3.5. ...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 [section] 3 of the LDIP [see paragraph 24 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.” 23. On 14 May 2007 the Versoix Municipal Council gave its consent to the applicant’s naturalisation, and this was confirmed by the town of Versoix on 25 May 2007 following a favourable opinion from the Canton of Geneva of 6 November 2006. It was subsequently confirmed by the authorisation issued by the Federal Migration Office on 21 May 2007.