CONCURRING OPINION OF JU D GE LEMMENS

1. I entirely agree with the finding in the judgment that there has been no violation of Article 6 § 1 of the Convention .

However, I should to like to specify that, in my opinion, the approach adopted by the majority is by no means incompatible with international law and, in particular, with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .

2. Paragraphs 117-118 of the judgment may give the impression that A rticle 14 of the Convention against Torture may – or even must – be read as obliging the States Parties to recognise the international jurisdiction in civil matters of their courts for acts of torture that may have been committed in another country by persons who are not resident in the country at the time that the case is brought before their courts .

In my opinion, however, i t is clear from the case-law of the Committee against Torture that A rticle 14 does not lend itself to such a broad interpretation .

In the case of Roitman Rosenmann v . Spain (2002), cit ed in paragraph 42 of the judgment, the complainant criticised the Spanish Government for blocking an extradition request in respect of General Pinochet, who was then in London. The Committee against Torture clearly stated, in particular, that A rticle 14 did not apply ratione personae to Spain , given that General Pinochet was not in Spain (§ 6.6). Referring to that decision, the Committee took a stand again in the case of Z. v . Australia (2014), c ited in paragraph 43 of the judgment. In that case, the complainant criticised the Australian courts for having dismissed her tort claim against the Chinese authorities for acts of torture committed in China, on the grounds that foreign government officials enjoy ed immunity from civil liability . The Committee dismissed the communication without examining the issue of immunity, considering 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” (§ 6.3).

It can be inferred from these two decisions that, as long as the alleged perpetrators of ill-treatment are not present in the territory of the State Party (criminal matters) or do not reside there (civil matters), that State is under no obligation to grant victims the right to obtain reparation before its courts .

This conclusion is not contradicted by General Comment no. 3 on the Implementation by States Parties of Article 14 , cited in paragraph 39 of the judgment. While 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” and it commends “the efforts of States parties for providing civil remedies for victims who were subjected to torture or ill-treatment outside their territory” (§ 22), nowhere does it suggest that the States Parties are required to recognise the civil jurisdiction of their courts irrespective of the residence of the presumed perpetrators .

Nor is the above finding contradicted by the concluding observations adopted by the Committee when examining the 4 th and 5 th periodic reports submitted by Canada (2005) and those in respect of the 6 th period report for that State (2012), which are quoted in paragraphs 36-37 and 38 of the judgment . While the Committee criticised the fact that Canada did not guarantee civil redress to all victims of torture, this was because the victims did not have access to the existing remedies, “wherever acts of torture occurred and regardless of the nationality of the perpetrator or victim” ( concluding observations on the 6 th periodic report , § 15). In my opinion, these concluding observations concern the fact that the Canadian courts do not have jurisdiction for claims in respect of acts of torture committed abroad, even if these acts are committed by Canadian perpetrators or against victims who are Canadian . Nothing is said about the Canadian courts ’ jurisdiction (or lack of jurisdiction) in respect of act s of torture commi tted abroad by foreign perpetrators who are not resident in Canada against non-Canadian victims who we re not resident in Canada at the material time .

3. For these reasons, I consider that A rticle 14 of the Convention against Torture does not preclude a Member State from reserving the civil jurisdiction of its courts to claims that have a sufficient connection with the State concern ed . This means, in my view, that in the event of acts of torture committed abroad by a foreign national against a foreign national [1] , the State may require that the defendant is resident in the county or that the claimant was resident there at the relevant time . [2]