CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 15 mars 2018

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SWITZERLAND   (Application no. 51357/07)                     JUDGMENT     STRASBOURG   15 March 2018       This judgment is final but it may be subject to editorial revision. In the case of Naït-Liman v. Switzerland, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Ganna Yudkivska,   Helena Jäderblom,   Ledi Bianku,   Kristina Pardalos,   Helen Keller,   André Potocki,   Aleš Pejchal,   Krzysztof Wojtyczek,   Dmitry Dedov,   Yonko Grozev,   Pere Pastor Vilanova,   Pauliine Koskelo,   Georgios A. Serghides,   Tim Eicke, judges, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 14 June 2017 and 7 December 2017, 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.     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 Government Mr   F. Schürmann , Head of the International Human Rights Protection Unit, Federal Office of Justice, Federal Department of Justice and Police, Agent , Mr   N. Meier , Head of the Private International Law Section, Federal Office of Justice, Federal Department of Justice and Police, Counsel Ms   C. Ehrich , lawyer, International Human Rights Protection Unit, Federal Office of Justice, Federal Department of Justice and Police, Ms   A.   Begemann , lawyer, Diplomatic and Consular Law Unit, Public International Law Directorate, Federal Department of Foreign Affairs,       Advisers ; (b)     for the applicant Mr   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. THE FACTS 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. ...” E.     Subsequent developments 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 A.     Relevant domestic law 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: Section 2 – In general “Unless specially provided otherwise in this Act, the Swiss judicial or administrative authorities of the defendant’s domicile shall have jurisdiction. Section 3 – Forum of necessity Where this Act does not provide for any forum in Switzerland and proceedings abroad prove impossible or it cannot reasonably be required that they be brought, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection shall have jurisdiction. Section 129 – Wrongful act The Swiss courts of the domicile or, in the absence of domicile, those of the defendant’s habitual residence or place of business shall have jurisdiction to examine actions based on a wrongful act. Where the defendant has neither a domicile nor a place of habitual residence or place of business in Switzerland, the action may be brought before the Swiss court of the place in which the act took place or of its outcome. Where several defendants can be found in Switzerland and where the claims are essentially based on the same legal and factual grounds, proceedings may be brought against all of them before the same court having jurisdiction; the first court to be seised has exclusive jurisdiction. Section 133 - Applicable law Where the perpetrator and the injured party have their habitual residence in the same State, the claims submitted in respect of a wrongful act shall be governed by the law of that State. Where the perpetrator and the injured party do not have their habitual residence in the same State, those claims shall be governed by the law of the State in which the wrongful act was committed. However, if the result was produced in another State, the law of that State shall be applicable if the perpetrator ought to have foreseen that the result would be produced there.     Notwithstanding the preceding paragraphs, where a wrongful act violates a legal relationship between the perpetrator and the injured party, the claims submitted in respect of that act shall be governed by the law applicable to that legal relationship.”   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): 213.3 Forum of necessity “The draft law seeks to determine, in an exhaustive manner, the Swiss authorities’ international jurisdiction. It follows that there is no international jurisdiction in Switzerland if this is not provided for in the draft law. The reasons for this are known. There are cases where the connection with Switzerland is so tenuous as not to justify setting in motion the whole machinery of justice in order to settle them. But section 3 provides for an exception to this principle. The Swiss authorities are bound to declare themselves competent even in cases presenting a highly tenuous connection with our country where it is impossible to bring an action or lodge an appeal abroad. It is for the applicant or the appellant to prove that impossibility. Where such proof has been adduced, jurisdiction lies with the authority at the place with which the facts have a sufficient connection. If there exist several competing fora in Switzerland, jurisdiction lies with the first authority seised. Clearly, the impossibility of bringing and proceeding with an action abroad can be examined only in the light of the actual circumstances of the case and that of any consequences that may have arisen for the person concerned; ultimately, it will be for the court concerned to decide whether it has jurisdiction.” C.     Domestic practice concerning section 3 of the LDIP 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 1.     The relevant provisions 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: 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.” 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, ar