CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 juin 2016

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SWITZERLAND   (Application no. 51357/07)               JUDGMENT         STRASBOURG   21 June 2016   THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 15/03/2018   This judgment may be subject to editorial revision. In the case of Nait-Liman v. Switzerland, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Işıl Karakaş, President,   Nebojša Vučinić,   Helen Keller,   Paul Lemmens,   Egidijus Kūris,   Robert Spano,   Jon Fridrik Kjølbro, judges, and Stanley Naismith, Section Registrar , Having deliberated in private on 31 March and 8   December   2015 and 17   May 2016: Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 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.     The applicant was represented by Mr F. Membrez, a lawyer practising in Geneva. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice. 3.     Relying on Article 6 § 1 of the Convention, the applicant alleges that the refusal by the Swiss civil courts to examine his civil claim for compensation in respect of the non-pecuniary damage caused by his alleged torture in Tunisia infringed his right of access to a court. 4.     On 30 November 2010 the application was communicated to the Government. 5.     The Redress Trust and the World Organisation Against Torture (“the third-party interveners”), 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 of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The events leading to the present case 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. B.     The criminal complaint against the Minister of the Interior in office at the relevant time 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. C.     The civil proceedings against Tunisia and the Minister of the Interior in office at the relevant time 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 2001 ‑ XI), 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. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.     Domestic law 24.     The relevant parts of the Federal Act on International Private Law of 18 December 1987 (LDIP; RS 291), as in force at the material time, provide as follows: Section 2 – In general “Unless specially provided otherwise in this Act, the Swiss judicial or administrative authorities of the claimant’s place of residence shall have jurisdiction.” Section 3 – “Forum of necessity” “Where this Act does not provide for any forum in Switzerland and proceedings abroad prove impossible or it cannot reasonably be required that they be brought, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection shall have jurisdiction.” Section 129 – Wrongful act “ 1. The Swiss courts of the domicile or, in the absence of domicile, those of the defendant’s habitual residence or place of business shall have jurisdiction to examine actions based on a wrongful act. 2 . Where the defendant has neither a domicile nor a place of habitual residence or place of business in Switzerland, the action may be brought before the Swiss court of the place in which the act took place or of its outcome. 3. 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 court first applied to has exclusive jurisdiction.” Art. 133 II. Applicable law “ 1 .   Where the perpetrator and the injured party have their habitual residence in the same State, the claims submitted in a respect of a wrongful act shall be governed by the law of that State. 2 .   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 occurred in another State, the law of that State shall be applicable if the perpetrator ought to have foreseen that the result would occur there. 3 .   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.” 25.     Articles 41 et seq. of the Swiss Code of Obligations provides for liability for a wrongful act: Chapter II: Obligations resulting from wrongful acts Article 41 A. General principles/ I. Conditions for liability “A person who unlawfully causes damage to another person, whether wilfully or through negligence or imprudence, is required to make reparation. A person who intentionally causes damage to another person by acting contrary to moral standards is also required to make reparation.” B.     Relevant international law and practice 1.     Universal civil jurisdiction (a)     The 1984 United Nations Convention against Torture 26.     The Convention against Torture was ratified by Switzerland on 2   December 1986 and entered into force on 26 June 1987. Its Article   1 provides: Article 1 “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 ...” 27.     Article 5 of that Convention provides for universal jurisdiction for prosecuting and punishing the proscribed acts: “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.” 28.     Articles 6 and 7 of that Convention also relate to jurisdiction in criminal matters: Article 6 “1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted. 2. Such State shall immediately make a preliminary inquiry into the facts. 3. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides. 4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction. Article 7 1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. 2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1. 3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.” 29.     Article 14 of that Convention provides for the right of victims of torture to obtain reparation: Article 14 “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.” (b)     Legal literature 30.     Legal commentators do not agree on whether Article   14 of the Convention against Torture has extra-territorial application. In the opinion of certain commentators, this provision does not lay down an obligation to exercise universal jurisdiction, but equally does not prohibit States, in the light of its paragraph 2 and of the object and purpose of the Convention, from providing for such an obligation (see Manfred Nowak/Elizabeth McArthur, The United Nations Convention against Torture: A Commentary , Oxford University Press 2008, p. 494, and Kate Parlett, Universal Civil Jurisdiction for Torture, European Human Rights Law Review, Issue   4 (2007), p. 398). 31.     Other writers argue that Article 14 applies 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), p. 926; 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), p.   957). 32.     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 for 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, p. 373). (c)     Travaux préparatoires for the Convention against Torture and declarations by States at the point of ratification 33.     There is no specific mention in the drafting history of Article 14 of the Convention against Torture of the question of universal civil jurisdiction. During the deliberations in 1981, the working group accepted the proposal by the Netherlands to include, after the expression “act of torture”, the words “committed in any territory under its jurisdiction”. When the convention was adopted, however, this phrase had disappeared, for reasons that are unclear (see Manfred/McArthur, op. cit. , p. 457). 34.     At the moment of 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” (reproduced in Mora, op.cit. , p.   375). 35.     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 10 th Congress, 2 nd   Session, reproduced in Nowak/McArthur, op. cit. , pp. 460-461). (d)     Practice of the United Nations Committee against Torture 36.     The United Nations Committee against Torture, the entity entrusted with implementing the Convention against Torture, criticised Canada’s narrow approach in its 4 th and 5 th periodic reports in 2005. According to one of the members of the Committee (Madame Gaer): “64. The preparatory work had not been as straightforward as had been described, although perhaps, having been involved in the negotiations, the State party might have additional information to share with the Committee. As the Committee understood it, the phrase ‘in any territory under its jurisdiction’ had been dropped from article 14 without any reason being stated. Canada had indicated that no country had such a provision, but the United States and its Alien Tort Claims Act cases provided the opportunity for victims to bring civil suits. She [Ms Gaer] wondered whether, in view of those considerations, the State party might reconsider the question.” ( Summary Record of the second part (public) of the 646 th Meeting, Consideration of Reports submitted by States Parties under Article 19 of the Convention (continued), CAT/C/SR.646/Add.1, 13 May 2005). 37.     The Committee expressed the following views in its concluding observations concerning Canada: “[The Committee is concerned by] the absence of effective measures to provide civil compensation to victims of torture in all cases; [The Committee recommends that] the State party ... review its position under article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture” ( Conclusions and recommendations of the Committee against Torture, Canada, CAT/C/CR/34/CAN, 7 July 2005, §§ 4(g) and 5(f)).” 38.     In its concluding observations on the 6 th periodic report on the same State in 2012, the Committee reiterated its position in the following terms: “15. The Committee remains concerned at the lack of effective measures to provide redress, including compensation, through civil jurisdiction to all victims of torture, mainly due to the restrictions under provisions of the State Immunity Act (art. 14). The State party should ensure that all victims of torture are able to access remedy and obtain redress, wherever acts of torture occurred and regardless of the nationality of the perpetrator or victim. In this regard, it should consider amending the State Immunity Act to remove obstacles to redress for all victims of torture.” (CAT/C/CAN/CO/6, 25 June 2012 § 15). 39.     In 2012 the Committee issued 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 reiterated its previous stand, asserting 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.” 40.     With regard to the practical and inherent legal obstacles to 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.” 41.     With more specific regard to the question of immunities, the Committee held: “42.     Similarly, granting immunity, in violation of international law, to any State or its agents or to non-State actors for torture or ill-treatment, is in direct conflict with the obligation of providing redress to victims. When impunity is allowed by law or exists de facto , it bars victims from seeking full redress as it allows the violators to go unpunished and denies victims full assurance of their rights under article 14. The Committee affirms that under no circumstances may arguments of national security be used to deny redress for victims.” 42.     The question of universal jurisdiction in relation to Article 14 has been raised in several individual communications before the Committee against Torture. In the case of Marcos Roitmann Rosenmann v.   Spain (no.   176/2000), the complainant argued that the way in which an extradition request against General Pinochet, then resident in the United Kingdom, had been dealt with 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.” 43.   In the case of Z. v. Australia (no. 511/2012, decision of 26   November   2014), the Committee against Torture was required to examine an individual communication lodged by an Australian citizen of Chinese origin who argued 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 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 on to examine the case, reiterated its approach concerning the geographical application of Article 14 of the Convention against Torture, but dismissed the case for the same reasons as the domestic courts (footnotes 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.” 2.     The specific nature of torture and other crimes in international law 44.     In its judgment of 20 July 2012 on Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ Reports 2012, p. 422, the International Court of Justice (ICJ) reiterated the specific nature of the crime of torture in international law in the light of the Convention against Torture: “68. As stated in its Preamble, the object and purpose of the Convention is ‘to make more effective the struggle against torture . . . throughout the world’. The States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred. All the other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. All the States parties “have a legal interest” in the protection of the rights involved ( Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970 , p. 32, para. 33). These obligations may be defined as ‘obligations erga omnes partes ’ in the sense that each State party has an interest in compliance with them in any given case. In this respect, the relevant provisions of the Convention against Torture are similar to those of the Convention on the Prevention and Punishment of the Crime of Genocide, with regard to which the Court observed that: “In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention.” ( Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951 , p. 23.) ... 99. In the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm ( jus cogens ).” 45.     In the case of Armed Activities on the Territory of the Congo ( Democratic Republic of the Congo v. Rwanda ), [Jurisdiction and Admissibility, judgment of 3 February 2006, I.C.J. Reports 2006, p. 6], the ICJ was required to examine whether it had jurisdiction to rule on a dispute which concerned a norm of jus cogens , namely the prohibition of genocide, in spite of a reservation, excluding its jurisdiction, introduced by Rwanda to the treaty providing for disputes to be settled by the ICJ. It concluded that it did not have jurisdiction, ruling as follows: “64. The Court will begin by reaffirming that ‘the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation’ and that a consequence of that conception is ‘the universal character both of the condemnation of genocide and of the co-operation required ‘in order to liberate mankind from such an odious scourge’ (Preamble to the Convention)’ ( Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951 , p. 23). It follows that “the rights and obligations enshrined by the Convention are rights and obligations erga omnes ” ( Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II) , p. 616, para.   31). The Court observes, however, as it has already had occasion to emphasize, that ‘the erga omnes character of a norm and the rule of consent to jurisdiction are two different things’ ( East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995 , p. 102, para. 29), and that the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute.   The same applies to the relationship between peremptory norms of general international law ( jus cogens ) and the establishment of the Court’s jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court’s Statute that jurisdiction is always based on the consent of the parties. ... 69. In so far as the DRC contended further that Rwanda’s reservation is in conflict with a peremptory norm of general international law, it suffices for the Court to note that no such norm presently exists requiring a State to consent to the jurisdiction of the Court in order to settle a dispute relating to the Genocide Convention. Rwanda’s reservation cannot therefore, on such grounds, be regarded as lacking legal effect. 70. The Court concludes from the foregoing that, having regard to Rwanda’s reservation to Article IX of the Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court in the present case.” 3.     The 1951 United Nations Convention relating to the Status of Refugees 46.     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. 47.     The relevant provision for the present case reads as follows: Article 16 – Access to courts “1.   A refugee shall have free access to the courts of law on the territory of all Contracting States. ...” C.     Comparative law 48.     As the present case raises complex legal issues, the Court considered it appropriate to conduct a comparative survey with regard to two sets of questions, namely universal civil jurisdiction for acts of torture on the one hand, and the principle of the forum of necessity on the other. The survey takes into account the domestic law and practice of twenty-six Contracting States (Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, the Czech Republic, Estonia, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta, Moldova, Poland, Portugal, Romania, Russia, Serbia, Slovenia, Spain, Turkey, Ukraine and the United Kingdom), and also that of two countries which are not member States of the Council of Europe (Canada and the United States). 1.     Universal civil jurisdiction (a)     Universal civil jurisdiction stricto sensu 49.     Analysis of the relevant elements of the domestic law in the States included in the survey clearly shows that, at the present time, none of the Contracting States studied provides for universal international jurisdiction before the civil courts, whether for acts or torture or for other criminal offences, although some legal opinion does seem to recommend this approach. 50.     In Italy there is no provision of positive law or clear case-law conferring universal jurisdiction on the civil courts in respect of claims for damages in cases of torture and crimes against humanity. However, a part of the Italian legal opinion considers that certain decisions by the Italian courts are moving in the direction of recognising such jurisdiction. They refer to the Court of Cassation’s judgment in the Ferrini case (6   November 2003, 11   March 2004), which concerned Germany’s responsibility for the claimant’s arrest in Italy and his deportation to Germany during the Second World War, and also to a series of subsequent judgments against Germany delivered by the Italian courts during the period from 2004 to 2008. One of those judgments authorised enforcement in Italy of a judgment by a Greek court ordering Germany to compensate the victims of the Distomo (Greece) massacre of 10 June 1944. These Italian judgments were at the origin of the ICJ’s decision of 3   February 2012 in the case Jurisdictional Immunities of the State ( Germany v. Italy, Greece (intervening)) , Reports ICJ, 2012, p.   99), which found that Italy had violated the customary international law guaranteeing jurisdictional immunity to States. The fact that Germany had been accused of a violation of jus cogens was not considered decisive by the ICJ. 51.