ECtHR Affirms Holy See’s Jurisdictional Immunity in Sexual Abuse Case

On 12 October 2021, the European Court of Human Rights (ECtHR) delivered its judgment in J.C. and Others v. Belgium (only available in French, so far).

The case has been widely reported in the general media, as it is concerned with the immunity of the Holy See in a sexual abuse case brought in Belgian courts.

The ECtHR reiterates that it does not consider that the current state of public international law supports the proposition that sovereign immunities would not apply to severe violations of human rights. The Court confirms that it does not see itself as a progressive force in the field of sovereign immunities, but rather as an authority which will follow the development of public international law.

In this context, the claim against the Holy See was unlikely to succeed. There was no allegation that officials of the Vatican had perpetrated acts of sexual abuse themselves. Rather, it was argued that they should be responsible for failing to supervise adequately the Belgian Catholic Church. If the immunity would stand for the direct perpetrator, why would it not for an indirect one?

Background

The applicants were 24 Belgian, French and Dutch nationals. They allege that they were victims of sexual abuse by Catholic priests when they were children.

In July 2011 the applicants filed a class action in a Belgian first instance court, complaining of the structurally deficient way in which the Church had dealt with the known problem of sexual abuse within it. The 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.

Basing their action on general tort law provisons (Articles 1382 and 1384 of the Civil Code), the applicants requested primarily that the defendants be held jointly and severally liable for the damage they claimed to have sustained as a result of the alleged sexual abuse by Catholic priests or members of religious orders. They also claimed that the defendants should be jointly and severally liable to pay compensation of EUR 10,000 to each of them because of the Catholic Church’s policy of silence on the issue of sexual abuse.

In October 2013 the Belgian court declined jurisdiction in respect of the Holy See. In February 2016 a Belgian Court of Appeal upheld the judgment. It found, in particular, that it did not have a sufficient jurisdictional basis to rule on the claimants’ action because of the Holy See’s immunity from legal proceedings. It also stated that Belgium’s recognition of the Holy See as a foreign sovereign with the same rights and obligations as a State was conclusively established. This recognition resulted from a series of commonly agreed elements of customary international law, foremost among which were the conclusion of treaties and diplomatic representation. The Holy See therefore enjoyed diplomatic immunity and all State privileges under international law, including jurisdictional immunity. 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.

In August 2016 a lawyer at the Court of Cassation gave a negative opinion on the chances of success of a possible appeal to the Court of Cassation.

Subsequently, all but four claimants who did not apply were able to obtain compensation through the arbitration centre for sexual abuse claims set up within the Catholic Church. Relying on Article 6 § 1 (right of access to a court), the applicants complained that the application to the Holy See of the principle of State immunity from jurisdiction had prevented them from asserting their civil claims against it.

Judgment

The Court noted that the Court of Appeal had found that the Holy See was recognised internationally as having the common attributes of a foreign sovereign, with the same rights and obligations as a State. The Court of Appeal had noted in particular that the Holy See was a party to some major international treaties, that it had signed agreements with other sovereign entities and that it enjoyed diplomatic relations with some 185 States worldwide. As regards Belgium, more specifically, diplomatic relations with the Holy See dated back to 1832 and it was recognised as a State.

The Court did not find anything unreasonable or arbitrary in the detailed reasoning which led the Court of Appeal to reach that conclusion. It pointed out that it had itself previously characterised agreements between the Holy See and other States as international treaties. Therefore the Holy See could be recognised as having characteristics comparable to those of a State. The Court of Appeal had thus been justified in inferring from those characteristics that it was a sovereign power with the same rights and obligations as a State.

The Court pointed out that it had also accepted that the 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.

As to the proportionality of the limitation sustained by the applicants in their right of access to a court, the Court found that the Court of Appeal’s approach corresponded to international practice in such matters. It had not noted anything arbitrary or unreasonable in the Court of Appeal’s interpretation of the applicable legal principles, or in the way it had applied them to the facts of the case, taking account of the basis of the applicants’ action.

The Court also noted that the question whether the case could fall within one of the exceptions to the application of the jurisdictional immunity of States had also been discussed before the Court of Appeal. The exception invoked by the applicants applied to proceedings relating to “an action for pecuniary compensation in the event of the death or physical injury of a person, or in the event of damage to or loss of tangible property”. The Court of Appeal had rejected this exception on the grounds, among others, that the misconduct of which the Belgian bishops were accused could not be attributed to the Holy See, as the Pope was not the principal in relation to the bishops; that the misconduct attributed directly to the Holy See had not been committed on Belgian territory but in Rome; and that neither the Pope nor the Holy See had been present on Belgian territory when the misconduct attributed to the leaders of the Church in Belgium had been committed. It was not for the Court to substitute its own assessment for that of the national courts, since their assessment on this point had not been arbitrary or manifestly unreasonable.

The Court also noted that the proceedings brought by the applicants in the Ghent Court of First  Instance had not been directed solely against the Holy See, but also against officials of the Catholic Church in Belgium whom the applicants had identified. However, the applicants’ claim on this ground was unsuccessful owing to the applicants’ failure to comply with procedural rules laid down in the Judicial Code and substantive rules concerning civil liability in summoning the other defendants. The reason why the applicants’ action had been totally unsuccessful had thus been the result of procedural choices that they failed to cure in the course of the proceedings in order to specify and individualise the facts submitted in support of their claims.

Consequently, the Court found that 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. There had therefore been no violation of Article 6 § 1 of the Convention.