Lack of jurisdiction to examine a lawsuit against the Holy See for the sexual abuse of children by Catholic priests. No violation of the right of court access
JUDGMENT
J.C. and others v. Belgium 12.10.2021 (app. no. 11625/17)
SUMMARY
The case raised the question of the immunity of the Holy See from the jurisdiction of domestic
courts. It concerned in particular an action for compensation brought by 24 applicants against the
Holy See and against a number of leaders of the Catholic Church of Belgium and Catholic
associations, claiming that damage had been caused by the structurally deficient manner in which
the State had dealt with the problem of sexual abuse in the Church. As the Belgian courts had found
that they did not have jurisdiction in respect of the Holy See, the applicants argued that they had
been deprived of access to a court and relied on Article 6 § 1 before the European Court of Human
Rights.
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.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicants are 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 the Ghent Court of First Instance, 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 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 Ghent Court of First Instance declined jurisdiction in respect of the Holy See.
In February 2016 the Ghent Court of Appeal upheld this 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.
THE DECISION OF THE COURT…
Article 6 § 1 (right of access to a court)
The present case was the first one to deal with the immunity of the Holy See.
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 States3 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.
Separate opinion
Judge Pavli expressed a dissenting opinion, which is annexed to the judgment.
