Ms Candice Dalino
Candice Dalino holds a master’s degree in law (cum laude) from Ghent University (Belgium) and currently specialises in a master’s of Human Rights and Democratisation at the Global Campus of Human Rights in Venice (Italy). She has a passion for international human rights law, criminal law, gender and non-discrimination issues and the interaction between (visual) arts and human rights.
Introduction
Once revered as a moral and spiritual leader, the Roman Catholic Church today is overshadowed by a sexual abuse scandal that has devastated society and severely tarnished its image. This shift reflects not only a loss of the Church's former status but also a profound crisis within the institution and society as a whole as it grapples with the consequences of systemic failures in protecting the most vulnerable members of society. Thousands of children have been the victims of sexual abuse by authority figures within the Church. The structural mismanagement of the Holy See made this abuse possible and systematically placed their self-interest above the protection and prevention of victims of sexual abuse.
There have been few human rights scandals in Belgium that have exposed in such a flagrant and structural way the judiciary’s failure to guarantee the principles of the rule of law and the fundamental rights of its citizens. Whereas in previous decades, this malfunctioning was highlighted in the persistent organisational flaws and the failing repressive nature of the system, this scandal revealed another force threatening the foundations of the rule of law: (the power of) the institution of the Roman Catholic Church.
The temporal, worldly order came face to face with the spiritual order. Worse, the temporal order was trampled to its foundations and brought to kneel before religion. The national legal action in Belgium is characterised by a two-track procedure: a civil claim and a criminal investigation. The procedural history of the (civil) case under discussion goes back to 2011, when four claimants brought civil liability action before the Ghent Court of First Instance. The action complained about the structurally deficient way in which the Church had dealt with the known problem of sexual abuse within the institution. While the judicial inquiry in Operation Kelk was played by higher powers, the civil claim encountered another obstacle: the Court of First Instance and, subsequently, the Ghent Court of Appeal declared themselves without jurisdiction and granted state immunity to the Holy See. In other words, the highest administration of the Roman Catholic Church would never have to answer to a temporal judge, and the victims would never see their complaint adjudicated on the merits: a procedural wall. Unseen: a universal religious organisation would simply be granted the privileges that belong exclusively to state actors in the temporal international legal order? Clearly, the victims' right of access to court had been denied.
Twenty-four victims applied to the European Court of Human Rights (hereinafter: ECtHR), alleging a violation of Article 6 §1 of the European Convention on Human Rights (hereinafter: ECHR), arguing that they were denied jurisdictional protection in Belgium as they were not allowed to present their civil claims before Belgian courts. The judgment J.C. and others v. Belgium constituted the first international court ruling on the immunity of the Holy See and could have represented a radical break with the Holy See's placing itself above the law. However, instead of considering the arbitrary and manifestly unreasonable elements in the Ghent Court of Appeal ruling, the ECtHR confirmed those errors of law. In J.C. and others v. Belgium, the principle of state immunity came into direct conflict with the right of access to court under Article 6 §1 ECHR. The right to access to court, anchored in the right to a fair trial under Article 6 ECHR, is a vital prerequisite for the rule of law. Nevertheless, the guarantee of this fundamental right depends primarily on whether victims are able to establish jurisdiction vis-à-vis a feasible judicial forum. Immunities, au contraire, act as a procedural bar to establishing such jurisdiction. A claim to immunity consists of an unwarranted refusal to satisfy what would otherwise be a valid and enforceable legal claim. It amounts, in fact, to a denial of justice. Lauterpacht addressed this incompatibility of the doctrine of jurisdictional immunity with the principle of the subjection of the sovereign state to the rule of law as follows:
At a period in which in enlightened communities, the securing of the rights of the individual, in all their aspects, against the state has become a matter of unique and significant effort, there is no longer a disposition to tolerate the injustice which may arise whenever the state…screens itself behind the shield of immunity in order to defeat a legitimate claim.
The ECtHR’s four-part reasoning
The ECtHR’s judgment raises several concerns regarding the (correct) application of the principle of state immunity (and the related non-state qualification of the Holy See) and the right of access to court under Article 6 §1 ECHR. This article seeks to unveil the extent to which international law and human rights have (not) guided the ECtHR in granting state immunity to the Holy See. Still, other factors were the driving forces behind this ruling. The four-part reasoning of the ECtHR in J.C. and others v. Belgium will be critically evaluated against the principles of state immunity, the non-state qualification of the Holy See and the right of access to court under Article 6§1 ECHR. Due to space constraints, this article will only focus on the first element of the ECtHR’s reasoning and shortly describe the other three. (See for the full assessment)
First, the ECtHR ruled that the Holy See is entitled to state immunity because it is a sovereign state. This reasoning will be analysed in detail below.
Secondly, the Court regarded the relationship between the bishops and the Pope of public law and qualified the acts as acta jure imperii. One of the objections the claimants raised was that the underlying facts were not acts of public authority but acts of private management and that the relationship between the Holy See and bishops was non-sovereign. Indeed, the underlying acts were performed by the spiritual Holy See, as head of the religious universal Roman Catholic Church and not as the highest governing body of the temporal Vatican. Immunity from jurisdiction exclusively applies to acta jure imperii and not to acta jure gestionis.
Thirdly, the applicants rightly invoked the territorial tort exception, arguing that the suffered damage had been caused in Belgium due to a ‘policy of silence’ promoted by the Holy See. The territorial tort exception’ allows a forum state to exercise jurisdiction in proceedings which relate to compensation for death or injury to persons caused by acts (or omissions) committed at least in part within the territory of the forum state ‘if the author of the act or omission was present in that territory at the time of the act or omission’. However, the Belgian courts, affirmed by the ECtHR, ruled this exception inapplicable, as the acts were sovereign (acta iure imperii), bishops’ actions were not attributable to the Holy See, and the directly attributable acts occurred in Rome, not Belgium. This reasoning is problematic as it is at variance with the material and territorial scope of the exception. All legal instruments and ILC Commentary imply that the exception is applicable irrespective of the nature of the act. Moreover, it would be difficult to explain it on logical grounds since state immunity can only be invoked in relation to sovereign acts and would, therefore, make this exception practically useless. As for the notion of attribution, according to the rules on international responsibility, the conduct of an ‘organ’ of the Holy See is attributable to the latter. In addition, even for persons that do not qualify as its ‘organs’, Article 8 of the ILC articles on state responsibility makes it clear that the conduct of a person shall be considered an act of the Holy See under international law if the person is acting on the instructions of, or under the direction or control of the Holy See. It should be noted that under Canon law, there is a clear hierarchical relationship between the Pope, who is the head of the Holy See, and the bishops. As to the question of whether the acts occurred on Belgian territory, Judge Pavli rightly argued in his dissenting opinion that:
It was sufficient for “agents” of that state, or individuals whose acts or omissions could be “attributed” to that entity as a matter of vicarious liability under Belgian law, to be present in and to operate on Belgian territory.
Fourthly, the ECtHR ruled that the Holy See's immunity is dependent on the presence of alternative remedies. It is well established that in cases concerning state immunity and Article 6 §1 ECHR, the availability of alternative means forms no factor in the reasoning of the Court. In J.C. and others, the ECtHR made an indisputable error in reasoning by importing a test that is normally reserved for international organisations. While the ECtHR applied the Waite and Kennedy test, it based the contingent immunity test on the Holy See on another rationale: ‘the serious interests at play’ and ‘the gravity of the sexual abuse’. Under international law, such considerations do not normally trigger a restriction of immunities. This would nevertheless be a positive development from the viewpoint of human rights. However, the Court shattered this by problematically applying the alternative remedies test. In the Court’s view, the existence of a potential remedy against a person other than the subject enjoying immunity would justify the grant of immunity. From a victim’s perspective, this remedy can only be incomplete and raises issues regarding the right of access to court, which must be both effective and practical. But most importantly, this reasoning overlooks the whole meaning of the claim in terms of accountability for the real underlying and systematic cause of the sexual abuse: clerical mismanagement and cover-up culture in the womb of the Holy See.
State immunity for a non-state actor?
It is distressing that the ECtHR, like Belgian Courts, applied the legal regime of state immunity to the Holy See, even though the latter is not actually a state but rather a universal religious organisation with a sui generis international legal personality. While the Holy See has been characterised as a state, a better view is that it is a sui generis entity that enjoys far-reaching international legal personality, but that falls short of statehood. It has never been disputed, however, that the Holy See has enjoyed international personality without interruption from the time of the inception of the rules governing international relations up to the present day. The transnational and decades-long multi-layered actorness complicates the delineation of precise legal characterisation of the Holy See. One may say that this uniqueness is that of a monster who has hopelessly fallen out of time. The Holy See possesses not merely the full, exclusive and absolute power and sovereign jurisdiction over the Vatican. Still, it is also the government of the worldwide Roman Catholic Church, with the Pope possessing the combined (absolute) authority, jurisdiction, and sovereignty. For that reason, the Holy See holds a particular position as an entity because it embodies both (the supreme head of) the (spiritual) Roman Catholic Church as well as (the absolute monarch of) the (temporal) Vatican. The Pope can be seen as a dictator disguised in a spiritual robe as he is both the absolute monarch of the Vatican (exercising all three arms of power: legislative, executive, and judicial) and the supreme head of the Roman Catholic Church.
The qualification of the Holy See as a sui generis entity, rather than as a state actor, relies firstly on the fact that the Holy See lacks the four criteria inherent to state actors under the Montevideo convention (permanent population, defined territory, (effective) government, capacity to conduct international relations). Secondly, the authority of the Holy See is not grounded in territorial sovereignty over the Vatican City premises, but rather in its spiritual sovereignty over the 1.3 billion adherents to the Catholic faith. (See: for the full assessment of the non-statehood of the Holy See)
It is primordial to distinguish the acts performed by the Holy See as head of the spiritual Roman Catholic Church on the one hand and the acts performed as governing body of the temporal Vatican City on the other. For the latter, state immunity could be invoked, for the former, not. As rightly stressed by Ryngaert and Pasquet:
Confusing the two levels could instead have repercussions in terms of accountability and access to justice, insofar as it would allow the main bodies of an ecclesiastical organization to shield themselves behind institutions and concepts designed for states.
That the Holy See has an international legal personality does not mean that it has the same rights and obligations as states or that it is entitled to immunity to the same extent as states. Non-state actors are not entitled to state immunity as it is a state prerogative, grounded in the fundamental principle of sovereign equality. The state immunity regime presupposes the existence of juridically equal states whose interactions are governed by international law. Ergo: where there is no state, the question of state immunity does not arise.
Instead of thoroughly examining international practice, the ECtHR resorted to analogical reasoning: like states, the Holy See has the capacity to conclude treaties and enter into diplomatic relations, therefore it enjoys the same immunity as states. Simply because its international personality resembles that of a state does not mean that this subject of international law is ipso facto a state and is entitled to the rights and privileges that go with it. At this point, both courts seem to have overlooked an important evolution within the international legal order: the capacity to enter into international relations is not the exclusive prerogative of states.
Attention should moreover be paid to the Reparation for Injuries Case where the ICJ observed that: ‘the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.’ Non-state actors such as international organisations are subjects of international law, but they do not enjoy immunity unless explicitly provided for by a particular treaty. This must be extended to the immunity regime applicable to the Holy See: as a sui generis religious universal organisation, its entitlement to immunity must explicitly be provided for in the law. In fact, state practice addressing the international immunities of the Holy See, as in the case covered, is limited, not to say, inexistent. While there are some case laws, they are based on domestic law rather than international law.
After recognising the qualification of the Holy See as a state in terms of immunity attribute, the ECtHR went on to consider if the Holy See’s immunity, as a procedural limitation on the right to access to a court, could be justified by the circumstances of the present case. Since McElhinney v. Ireland, the Court generally considers that granting state immunity pursues the legitimate aim of complying with international law to promote comity and good relations between states through the respect of another state’s sovereignty. Notable, at present there is no obligation to grant immunity to foreign states under customary international law. The shift from the absolute to the restrictive doctrine of state immunity has been characterised by a strong divergence in state practice and a diminishing role of the state in the international legal order. States are no longer under a legal duty under international law to accord immunity to each other. The practice that claims to be guided by customary international law on state immunity is, in fact, only a small portion of what could constitute ‘general practice accepted as law’ under the ICJ’s Statute. Hence, if the ECtHR, indeed, wishes to ‘comply with international law’ and ‘interpret the convention in the most harmonious way possible with the other rules of international law’, it should adhere to the evolving nature of this international law body. Instead of copy-pasting its conservative case law on immunities and Article 6 §1 ECHR, the court should re-examine its reasoning by focusing on the (recent evolutions of the) customary aspect of the general immunity rule.
Conclusion: the ECtHR as the main violator of human rights?
The foregoing evaluation made it univocal: the Holy See is not entitled to state immunity under international law. This became apparent not just once but on four occasions in J.C. and others v. Belgium. At each stage of applying the regime of state immunity, the ECtHR had the opportunity to reconsider and recognise that the Holy See falls outside the scope of state immunity. Instead, the Court relapsed four times into the same erroneous reasoning.
It can perhaps be said that the greatest human rights violator, after the Holy See, is the ECtHR itself. This critique derives from the fact that by granting the Holy See state immunity in J.C. and others, the ECtHR not only upholds a formalistic and outdated state-centric approach but, even more, disregards its entire intrinsic duty to protect the ECHR and, in that sense, its entire raison d'être.
The ECtHR’s raison d’être
By granting the Holy See state immunity, the ECtHR did not contest that the right of access to court was restricted. However, in view of the circumstances they saw it as a justifiable restriction. A limitation of Article 6 §1 ECHR is justifiable if it has a legitimate aim (1), is proportionate (2) and if the very essence of the right of access to court is not impaired (3). This part will reveal that the grant of state immunity in J.C. and others v. Belgium did not pass the threefold Ashingdane test, leading to an unjustifiable limitation. (See: For the full evaluation of the three-step restriction test)
Firstly, considering the limitation pursued a legitimate aim, reference can be made to the outline above.
Secondly, as for the proportionality, the ECtHR upheld the same conservative view as in its preceding cases and concluded that measures taken by a state which reflected generally recognised principles of international law on state immunity could not, in principle, be regarded as imposing a disproportionate restriction. In this manner, the proportionality of the restriction is entirely absorbed by the legitimacy of the aim.
Thirdly, a restriction of Article 6 §1 ECHR must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Nevertheless, in J.C. and others v. Belgium, no mention was made of this criterion, leading to further omission from the discussion. Therefore, once the ‘proportionality’ criterion is addressed, the Court proceeds, by skipping the third requirement, directly to its conclusion on whether or not Article 6 §1 ECHR was violated. Given the destructive effect that the operation of immunity has on jurisdiction and, consequently, the right of access to court, it is distressing that the criterion has not played a crucial role in the ECtHR’s reasoning. Indeed, when the limitation in the present case is tested against the very essence criterion, it becomes apparent that it is the nature of (state) immunities that paralyse the very essence of the right to access the court. In other words: immunities totally eliminate the right of access to court, not leaving any scope for its exercise. When assessing the limitation of Article 6 §1 ECHR in J.C. and others, one thus would have to come to the conclusion that the applied limitation does restrict or even reduces the applicants’ access to court in such a way or to such an extent that the very essence of the right is impaired, and in this sense, the third criterion of the Ashingdane test could not be fulfilled.
Perhaps the ECtHR bypasses the ‘very essence’ criteria because significantly approaching it would lead to the end of a justifiable application of state immunities in light of Article 6 ECHR. Once having imposed this criterion in Ashingdane, the Court appears to have disregarded this third criterion precisely because of the impossibility of the claim of state immunity to satisfy it. Where other authors propose to resolve this anomaly by abandoning the ‘very essence’ criterion from the test and thus merely applying a twofold test when considering complaints of an alleged immunity-related violation of Article 6§1 ECHR, the present author advocates for a strict application by the Court. Considering otherwise would lead to upholding a principle of international law which inextricably restricts Article 6 ECHR in such a way that the very essence of the right is impaired, leaving only a pure theoretic, illusory and void of legal effect right (of access to a court).
The ECtHR, instead of properly applying the Ashingdane test in its threefold nature and examining whether it was fulfilled in the present case, circumvented it and, in a cut-and-paste manner, applied its standard reasoning. This gives the impression that the Court does not actually consider the underlying facts and circumstances but overall praises the state and its ‘sovereignty’ high - if not highest - in regard, at the expense of the fundamental rights of the citizens of a state.
Outdated and conservative state-centric approach
In interpreting Article 6 ECHR, the ECtHR has always referred to the ‘living’ nature of the Convention, which must be interpreted in light of present-day conditions, and that it has taken account of evolving norms of national and international law. The court moreover emphasised that ‘the right to fair trial holds so prominent place in a democratic society that there can be no justification for interpreting article 6 §1 of the convention restrictively’. However, little of these two premises seem to emerge in J.C. and others v. Belgium. Instead, the ECtHR seems to apply a formalistic and outdated state-centric approach, that upholds the state’s sovereignty in all instances. The Court formulates its reasoning in a standardised and conservative manner without actually examining (the recent evolutions within) the international legal order.
It can be said that in J.C. and others, the right of access to court does not form the central thread, but apparently, other factors prevail. According to El Sawah, practical considerations have material relevance to the Court in consolidating state immunity in its case law. It can furthermore be observed that the policies and practices in the field of state immunities, unlike other fields of international law, are influenced by multiple actors based on both political and legal considerations. Political considerations should not lead the ECtHR’s rulings and obstruct victim’s redress to justice. Some may agree that these considerations ought not to be disregarded. Nevertheless, fundamental considerations such as the right of access to court, accountability and the primordial role of the rule of law in democratic societies should remain the guiding principles when determining the contours of state immunity.
Indeed, Lauterpacht argued that there is probably no other subject in the field of international relations in which law and politics appear to be more closely interwoven. As a result, there has grown a tendency to maintain that the crucial question is not one of international law. This confirms exactly what this research reveals: international law and human rights are not the driving forces behind this ruling. Instead, other factors are at play. These factors have no place in a 21st-century rule of law where human rights should be the guiding thread. Especially not when they serve to protect a sacred, outdated institution. Religion does not stand above the law.
The paradox or sadness of this all is that the Holy See is not even a state but a non-state actor not entitled to this outdated international law regime. If anything, the Holy See has shown that it is able to navigate the waters of the regimes of the international legal order, allowing it to place itself above the law and accommodating its rights and interests remarkably well. The Holy See succeeded in manipulating the inconsistent and sparse features of the international legal system of state immunities to its own advantage.
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