The European Court of Human Rights (ECtHR) on 12 Octobor 2021 issued a historic judgment in the case of J.C. and Others v. Belgium (application no. 11625/17) by a majority (six votes to one). It is concluded that there had been no violation of Article 6 § 1 (right of access to a court) of the European Convention on Human Rights (France24, 2021). Therefore, the court rejected the claims raised by victims of sexual abuse of Catholic priests. Ultimately, the court come to the conclusion that the Holy See benefited from legal immunity granted to sovereign states (ECtHR Press Release, 2021). Given the importance of this judgment, which is the first one to deal with the immunity of the Holy See, and vast media coverage on this issue, in this article various aspects of it will be addressed.
Background and Facts of the Case
The applicants are composed of 24 nationals from Belgium, France and Netherlands. The applicant claimed that they were victims of sexual abuse by priests of Catholic Church during their childhood. As their first legal attempt, they filed a class action in the Ghent Court of First Instance in 2011. Their allegations were mainly based on the structurally deficient way in which the Church had dealt with the known problem of sexual abuse within it (ECtHR Press Release, 2021).
The initial class action was brought against the Holy See as well as an archbishop of the Catholic Church in Belgium and his two predecessors, several bishops and two associations of religious orders. The applicants invoked to Articles 1382 and 1384 of the Belgian Civil Code and requested the liability of defendants, jointly and severally, for the damage sustained as a result of the alleged sexual abuse by Catholic Church members.
Article 1382 Belgian Civil Code provides that (BIICL,2020) :
“Any act whatever of man which cause damage to another obliges him by whose fault it occurred to make reparation”. The fault may consist in negligence according to the terms of article 1383 which provides that “each one is liable for the damage which he causes not only by his own act but also by his negligence or imprudence”.
Also, Article 1384 §1 Civil Code is a strict liability provision. According to it, one incurs liability for damages caused by things that one has in his keeping. Unlike article 1382 which explicitly requires a fault and accordingly its demonstration, article 1384 §1 rests on a non-rebuttable presumption of fault. In support of his claim, the injured person must prove damage, the defectiveness of the thing, and the existence of a causal relationship between the defect and damage (Ibid).
Also, it is claimed that the defendants should be jointly and severally liable to pay compensation of 10,000 Euro to each of them because of the Catholic Church’s policy of silence on the issue of sexual abuse. However, the Ghent Court of First Instance declined jurisdiction in respect of the Holy See (Ibid).
Accordingly, in February 2016 the Ghent Court of Appeal upheld this judgment. It argued that, Belgium courts do not have a sufficient jurisdictional basis to deal with cases against. As the Belgium state recognized the Holy See as a foreign sovereign with the same rights and obligations as a State and therefore, it enjoys immunity under international law. It must be noted that the state immunity rules are resulted from a series of commonly agreed elements of customary international law. The Court of Appeal also noted that the dispute did not fall within any of the exceptions to the principle of State immunity from jurisdiction. Ultimately, all but four claimants who did not apply were able to obtain compensation through the arbitration center for sexual abuse claims set up within the Catholic Church (ECtHR Press Release, 2021).
Therefore, on February 2017, under Article 6 § 1 European Convention on Human Rights(ECHR), the applicants claimed that the Holy See immunity from jurisdiction had prevented them from asserting their civil claims against it before national courts of Belgium (Ibid).
Article 6 § 1 European Convention on Human Rights(ECHR) under the title of “Right to a fair trial” provides that (ECHR,1950);
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The application led to recent judgment of the ECtHR which was given by a Chamber of seven judges, composed as follows: Georgios A. Serghides (Cyprus), President, Paul Lemmens (Belgium), Georges Ravarani (Luxembourg), María Elósegui (Spain), Darian Pavli (Albania), Peeter Roosma (Estonia), Andreas Zünd (Switzerland) (Ibid).
First Judgment on the immunity of the Holy See at ECtHR
As it is stated, it is the first judgment that is issued concerning the immunity of the Holy See as a sovereign state which makes it as a remarkable judgment in the jurisprudence of ECtHR. Generally, the court concluded that the Holy See is recognised as having characteristics comparable to those of a State.
It noted that the Ghent Court of Appeal found that the Holy See was recognised internationally as having the common features of a sovereign state and it was a party to some major international treaties. Also, it enjoyed diplomatic relations with some 185 States. therefore, The ECtHR did not find anything unreasonable or arbitrary in the detailed reasoning which led the Court of Appeal to reach that conclusion. Besides, the court pointed out to its previous judgments in the cases Fernández Martínez v. Spain, and Travaš v. Croatia, that it had itself previously characterized agreements between the Holy See and other States as international treaties.
Also, the court mentioned of the core reasons of having state immunity as an international law norm. the court concluded that granting of State immunity in civil proceedings pursued the legitimate aim of observing international law for the sake of comity and good relations between States, by ensuring respect for the sovereignty of another State (Ibid).
Accordingly, the ECtHR concluded that there had been no violation of Article 6 § 1 of the ECHR. As, the dismissal of the proceedings by the Belgian courts in declining jurisdiction to hear the tort case brought by the applicants against the Holy See had not departed from the generally recognised principles of international law in matters of State immunity and the restriction on the right of access to a court could not therefore be regarded as disproportionate to the legitimate aims pursued (Ibid).
Concluding Remarks
it is the first judgment that is issued concerning the immunity of the Holy See as a sovereign state which makes it as a remarkable judgment in the jurisprudence of ECtHR. Although this was a Chamber judgement and both sides have a three months’ period to request that the case be referred to the Grand Chamber of the ECtHR for a final ruling, it unlikely for that the judgment would be overruled. Since, the jurisdictional immunity of Holy See is evident.
Bibliography
BIICL,2020, “Overview Belgium”, accessed 16 October 2021<https://www.biicl.org/files/659_overview_belgium.pdf >.
ECtHR, 2021, “J.C. and Others v. Belgium (no. 11625/17)”, 12 Octobor 2021.
ECtHR Press Release, 2021, “Dismissal of civil action on grounds of Vatican’s jurisdictional immunity did not violate Convention”, available at < https://advokatnidenik.cz/wp-content/uploads/Judgment-J.C.-and-Others-v.-Belgium-dismissal-of-civil-action-on-grounds-of-Vaticans-jurisdictional-immunity-.pdf >
France24, 2021, “EU rights court rejects sex abuse case against Vatican, cites immunity of ‘sovereign’ states”, accessed 15 October 2021 < https://www.france24.com/en/europe/20211012-european-court-of-human-rights-rejects-case-seeking-to-blame-vatican-for-child-sex-abuses >.
By The European Institute for International Law and International Relations.
