JOINT DISSENTING OPINION OF JU D GES KARAKAŞ, VUČINIĆ AND KŪRIS

1. We disagree with the conclusion reached by the majority that there has been no violation of Article 6 § 1 of the Convention . We consider that the applicant ’ s right of access to a court was violated .

2. Firstly, it is undeniable that the prohibition on torture is a peremptory norm of international law ( jus cogens ). This has already been acknowledged in the Court ’ s case-law (see Al- Adsani v. the United Kingdom [GC], n o. 35763/97, § 60, ECHR 2001-XI). This prohibition implies positive obligations on the part of the States, including that providing adequate redress ( see Ilhan v . Tur key , n o. 22277/93, 27 June 2000, § 97; see also the Barrios Altos v . Peru , 14 March 2001, § 43, judgment of the Inter-American Court of Human Rights ), and also appears in A rticle 14 of the United Nations C onvention against T orture.

3. The United Nations Committee against Torture has noted on numerous occasions that there must exist effective mechanisms enabling the victims of torture to have access to redress and to obtain compensation, irrespective of the country in which the acts of torture were committed and of the nationality of the perpetrator or victim ( see paragraphs 37 to 40 of the judgment ).

4. I t should also be noted that there exists a growing European consensus on “emergency” juri s diction, according to which residence is a sufficient connection ( see paragraph 98 of the judgment, on the third-party observations ).

5. In Swiss law, section 3 of the Federal Law on Private International Law provides for the jurisdiction of the Swiss authorities by means of the forum of necessity, and Article 41 A of the Code of O bligations establishes liability for damage caused unlawfully, as well as the obligation to provide redress .

6. The question which concerns us in the present case is whether the Federal Court ’ s decision dismissing the applicant ’ s claim on the basis of section 3 of the Federal Law on Private International Law was compatible with the right of access to a court guaranteed by Article 6 § 1 of the Convention o r whether that restriction was disproportionate to the aim pursued.

7. The Federal Court rejected the application of the principle of the forum of necessity on the ground that there was not a sufficient connection, by interpreting the above-cited section 3 in a very restrictive manner . Yet, according to that section, the existence, in itself, of “a sufficient connection” would enable the forum of necessity to be applied in favour of the applicant . Although it cites the Federal Council ’ s interpretation of that provision ( see paragraph 22 of the judgment , point 3.4 of the Federal Court ’ s decision ) and refers to the legal writings which argue that the forum of necessity must be recognised, in particular, in situations of political persecution, the Federal Court chose, in its judgment of 22 May 2007, a restrictive interpretation, although there was nothing, either in the law, or the case-law, or the legal writings, forcing it to do so. In our opinion, the Federal Court denied the applicant justice .

8. The applicant fled to Switzerland in 1992 and was granted political asylum on 8 November 1995. He obtained Swiss citizenship through naturalisation following a favourable opinion issued on 6 November 2006 by the Canton of Geneva, endorsed by authorisation from the Federal Migration Office date d 21 May 2007, and his naturalisation was confirmed on 25 May 2007 by the Versoix Municipal Council .

9. We wish to draw attention to the date of the Federal Court ’ s j udgment , that is, 22 May 2007, which ruled that there was not a sufficient link between the applicant ’ s case and Switzerland! In this regard, we would again point out that the Federal Migration Office authorised the applicant ’ s naturalisation one day prior to the Federal Court ’ s judgment, that is on 21 May 2007, and that the only procedure that occurred subsequent to that date was the confirmation by the Town of Versoix on 25 May 2007. The applicant had been resident in Switzerland for eleven and a half years at the time that the Federal Court delivered its judgment on 22 May 2007, and he obtained Swiss nationality on 25 May 2007, with prior authorisation of which the Federal Court could not have been unaware, since it was dated 21 May 2007, or one day before that court ’ s decision .

10. The applicant ’ s place of residence, refugee status, the naturalisation procedure with the favourable opinion of 2006 and the authorisation of 21 May 2007, taken together with the presence in Swiss territory of the person suspected of having committed the alleged acts of torture, that is, under the jurisdiction of the State concerned, enabled a sufficiently strong connection to be established in order to apply section 3 of the Federal Law on Private International Law and to examine the applicant ’ s claim on its merits .

11. In the light of the above , the Federal Court ’ s interpretation of this provision in the present case is arbitrary and manifestly unreasonable .

12. Another aspect of the case should also be mentioned. The majority is wholly silent on a striking fact referred to in paragraph s 13 and 14 of the judgment . On 14 February 2001 the applicant filed a criminal complaint with the Principal Public Prosecutor of the Canton of Geneva against his alleged torturer. Yet the Principal Public Prosecutor did not rule on this complaint until 19 February 2001 , refusing to take it into consideration on the grounds that the individual accused by the applicant had by then left Switzerland. The Government have provided no information about the reason and the date of this departure. Given that the person suspected of having committed the acts of torture was hospitalised in Switzerland on the date on which the complaint was filed, attention should be paid to the five days during which the authorities were inactive .

13. The domestic courts, together with the majority of the Chamber, have thus neglected the Swiss authorities ’ failure to take account of the criminal complaint lodged by the applicant against the suspect, although the latter was at that time present in Switzerland .

14. From the moment that the individual suspected of having committed the acts of torture complained of had spent time in Switzerland , the State ’ s international obligations came into play and the domestic courts thus had jurisdiction for bringing criminal proceedings, during which functional immunity could not be relied on in respect of torture.

15. As the majority also admit ( see paragraph 114 of the judgment ), sufficient connections are usually nationalit y , domicile or habitual residence, and section 3 of the Federal Law on Private International Law is part of the consensu s within the member States of the Council of Europe providing for a sufficient connection. The problem, however, lies in the Federal Court ’ s restrictive interpretation. To the impunity for perpetrators of acts of torture or crimes against humanity that may result from such an interpretation is added the i nability, for the victims of those acts, to claim damages .

16. Even supposing that the effective administration of justice could represent a legitimate aim, the closing of all the proceedings related to the civil claims submitted by the applicant for the purpose of obtaining redress for the damage arising from the acts of torture complained of was disproportion ate .

17. The Convention, as a “living instrument”, should be interpreted in the light of “ any relevant rules of international law applicable in the relations between the parties” , particularly the “general principles of law recognised by civilised nations” ( Article 38 § 1 (c) of the Statute of the International Court of Justice ). “The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally ‘ recognised ’ fundamental principles of law ; the same is true of the principle of international law which forbids the denial of justice ” ( see Golder v . the United Kingdom , 21 February 1975, § 35, Series A n o. 18).

18. In the present case, the dismissal of the applicant ’ s action without an examination of the merits by the Swiss courts impaired the very essence of the applicant ’ s right of access to a court ( see , a contrario , Arlewin v . S weden , n o. 22302/10, §§ 72 and 73, 1 March 2016). We consider that this inability to seek redress is equivalent to a denial of justice and that, in consequence, there has been a violation of Article 6 § 1 of the Convention .

19. The interpretation and application of Article 6 § 1 of the Convention in this case ought to have built on the significant developments in recent years seeking to combat the impunity of the perpetrators of acts of torture, to the effect of enabling an action for reparation to be brought before a foreign court .

20. In the Al- Adsani case ( cited above , § 60), the prohibition of torture was accepted and already acknowledged as jus cogens . The cautious wording in the present case ( see paragraphs 117-121 of the judgment ) suggests that the Cour t is not inclined to maint ain this unequivocal acknowledgment . In this sense, the present judgment represents a significant regression, even compared to the above-cited Al- Adsani judgment ( in which, inter alia , no violation of Article 6 § 1 of the Convention was found ). I t is regrettable that this judgment is akin to a tacit encouragement, by the highest human-rights court in Europe, of the denial of justice.

21. We consider that it is time for the Court to clarify this serious question, which affects the interpretation and application of Article 6 § 1 of the Convention .

22. In the (above-cited) case of Al- Adsani , one of the dissenting judges exclaimed “What a pity”. In the case of Jones and Others v. the United Kingdom (n os. 34356/06 and 40528/06, 14 January 2014), another dissenting judge echoed “What a pity! ” .

23. We can also say “what a pity” that the Court does not dare to render justice in this case on the principle of the forum of necessity! Delivery of this judgment will take place a few days prior to the International Day in Support of Victims of Torture (26 June ). We might note, with a sad irony, that this judgment will certainly not be applauded on that day of commemoration .

[1] . If the acts were committed in the territory of the State concerned , Article 14 seems to require that the civil jurisdiction of the courts be recognised, irrespective of the nationality or the residence of either the victim or the presumed perpetrator .

[2] . According to A rticle 5 § 1 ( c) of the Convention against Torture, which concerns the criminal jurisdiction of the courts , “each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences [of torture or complicity in torture] ... when the victim is a national of that State if that State considers it appropriate ”. According to A rticle 5 § 2, “Each State Party shall ... 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” ( see paragraph 29 of the judgment ). I t would be surprising if a stronger obligation, not explicitly foreseen by the Convention against Torture, existed for civil jurisdiction .