Giurisdizione civile universale per atti di tortura e diritto di accesso al giudice: la sentenza della Grande Camera della Corte europea dei diritti umani nel caso Naït-Liman

In Naït-Liman, the Grand Chamber of the European Court of Human Rights has almost unanimously found that Switzerland had not violated the right of access to a court, when that State’s Federal Tribunal had declined jurisdiction in respect of a compensation claim brought by a Tunisian national – also a Swiss refugee, resident and national – against Tunisia and its former Minister of the Interior for torture in Tunisia allegedly attributable to the defendants. The Grand Chamber held that, given the absence of any well-settled international law norm imposing universal or forum-of-necessity-based jurisdiction over the applicant’s claim, Switzerland enjoyed a wide margin of appreciation, which it had not exceeded, about the provision of remedies for extraterritorial torture. This comment submits that the argumentation of the Court is unsatisfactory, mainly for two reasons. First, the Court once again did not give real substance to the test of proportionality of the impugned restriction when it abstained from relying on the absence vel non of effective alternative remedies for the victim. Secondly, it unduly conflated the issue of the scope of the margin of appreciation with an appraisal of the state of international law on extraterritorial jurisdiction for torture. By doing so, the European Court abdicates its role as a forerunner in the evolution of international law and of the European human rights public order with respect to questions which are unsettled and in a state of flux. It also runs a risk of contributing to the freezing of the pertinent international law.