European Court of Human Rights ruling a missed opportunity to provide justice for torture victim
15 March 2018
European Court of Human Rights ruling a missed opportunity to provide justice for torture victims
A European Court of Human Rights ruling preventing a torture victim from seeking justice in foreign states is a damaging setback that effectively leads to impunity and could deny justice to thousands of survivors, Amnesty International said today.
Although recognising the broad consensus within the international community that torture victims have a right to obtain appropriate and effective redress, the Court’s Grand Chamber ruled today that Swiss civil courts had not violated the rights of Abdennacer Naït-Liman, who was allegedly tortured by Tunisian security forces in 1992, by refusing to examine his claim for damages.
The verdict confirms an earlier 2016 European Court of Human Rights (ECtHR) Chamber judgment in this case.
“The Grand Chamber’s decision is a missed opportunity to deliver justice to torture victims who have been denied it in their countries of origin,” said Tawanda Mutasah, Amnesty International’s Senior Director, International Law and Policy.
Impunity for torture crimes is prevalent in Tunisia where the overwhelming majority of credible allegations of torture and other ill-treatment attributed to the security forces has not resulted in a prosecution. In the few instances where such prosecutions occurred and resulted in convictions, the sentences were rarely commensurate with the gravity of the offences committed.
“This landmark case would have been key in establishing that certain states have a legal obligation to enable victims of torture to seek justice, even outside of the country where they were abused, but the verdict effectively leaves them with nowhere to turn.”
Abdennacer Naït-Liman, a Tunisian national who acquired Swiss nationality in 2007, was allegedly arbitrarily detained and tortured by Tunisian security officers for six weeks in 1992 under the regime of former president Zine El Abidine Ben Ali. He was granted asylum in Switzerland in 1995.
In 2001, one of the alleged perpetrators – Tunisia’s former Minister of Interior – visited Switzerland for medical treatment and Mr Naït-Liman lodged a criminal complaint against him and an application for damages. However, the perpetrator left Switzerland before the authorities had arrested him.
Naït-Liman subsequently started a civil claim for compensation in the Swiss courts - against Tunisia and the alleged perpetrator - for damage caused by his alleged torture.
When the Swiss courts refused to examine Mr Naït-Liman’s claim on the grounds that they did not have jurisdiction to hear an overseas case, Naït-Liman went to the ECtHR.
Citing the absolute prohibition on torture under international law, he claimed his right to access justice via the Swiss courts had been violated. Amnesty International and the International Commission of Jurists intervened as third parties in the case.
The ECtHR ruled in June 2016 that Swiss courts had not violated Naït-Liman’s right of access to a court. However, in a rare turn of events, the Court’s Grand Chamber later agreed to hear the case, a decision indicative of the seriousness of the issues at stake.
“Instead of taking a positive step towards tackling impunity for torture, this ruling allows it to become ever-more entrenched,” said Tawanda Mutasah.
“By preventing torture victims from seeking justice in a European host country, this verdict essentially ignores the obligation under international human rights law to provide them with reparations.”
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