EHRM, 23-03-2010, nr. 15869/02

The applicant submitted that no description of her official duties had ever been appended to her employment contract. The low-level post that she occupied did not include any tasks or functions which could justify considering the application of State immunity, within the meaning of the relevant provisions of the Basle Convention or the United Nations Convention.

The Government argued that the limitation imposed on the applicant's right of access to a court pursued a legitimate aim, namely to promote respect for the independence and sovereign equality of States in accordance with domestic and public international law.

As regards the proportionality of the restriction, the Government observed that international legal instruments and the case-law of a certain number of States considered that, in employment-related disputes, State immunity was not limited when the employer was a foreign embassy. Both in Lithuania and Poland, questions of State immunity were governed by customary international law, such questions not having been resolved by any bilateral agreements. In support of their argument the Government relied on Article 32 of the Basle Convention, Article 38 § 2 of the Vienna Convention on Diplomatic Relations and Article 11 § 2 (c) of the United Nations Convention on Jurisdictional Immunities of States and their Property. They contended that States enjoyed a discretionary power of appointment to official posts. The same applied to the ‘dismissal’ or ‘termination of contract’ of civil servants after an inquiry or an investigation as part of the supervisory or disciplinary powers exercised by the employer State.

In the present case, the reason why the Polish Embassy had requested the application of State immunity in the applicant's case was, in the Government's submission, partly to do with the origin of the dispute — allegations of sexual harassment involving a member of the Embassy's diplomatic staff — that the Lithuanian courts could not have properly examined without questioning persons enjoying diplomatic immunity.

Thus the subject matter of the applicant's claim before the courts would have involved investigation into the public and sovereign sphere of Poland. The Lithuanian Supreme Court had reached a reasonable conclusion, taking into consideration, inter alia, the fact that Poland, in invoking State immunity, considered that the dispute between the applicant and the Polish Embassy was not an ordinary employment dispute.

In any event, even if the Lithuanian courts had assumed jurisdiction to hear the applicant's case and had dealt with it on the merits (for example, finding that the dismissal had been unlawful and awarding the applicant compensation), it would have been impossible to enforce the decision against the respondent State, namely Poland, which had indicated, by means of a diplomatic note, its formal refusal to appear in the proceedings as defendant.

The Court reiterates that the right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the principle of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002-IX). Everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way Article 6 § 1 embodies the ‘right to a court’, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001-VIII).

However, the right of access to a court secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do 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. Furthermore, a limitation of the right of access to a court will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999-I; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 98, ECHR 2001-V; and Fogarty v. the United Kingdom [GC], no. 37112/97, § 33, ECHR 2001-XI).

Moreover, the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31 § 3 (c) of which indicates that account is to be taken of ‘any relevant rules of international law applicable in the relations between the parties’. The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must therefore be mindful of the Convention's special character as a human rights treaty, and it must also take the relevant rules of international law into account, including those relating to the grant of State immunity (see Fogarty, cited above, § 35).

It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to a court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity (see Kalogeropoulou and Others v. Greece and Germany (dec.), no. 59021/00, ECHR 2002-X, and Fogarty, cited above, § 36).

Furthermore, it should be remembered that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Aït-Mouhoub v. France, 28 October 1998, § 52, Reports 1998-VIII). It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 — namely that civil claims must be capable of being submitted to a judge for adjudication — if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons (see Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B).

Therefore, in cases where the application of the principle of State immunity from jurisdiction restricts the exercise of the right of access to a court, the Court must ascertain whether the circumstances of the case justify such restriction.

The Court must first examine whether the limitation pursued a legitimate aim. In this connection, it observes that State immunity was developed in international law out of the principle par in parem non habet imperium, by virtue of which one State could not be subject to the jurisdiction of another. The Court considers that the grant of immunity to a State in civil proceedings 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.

In the Fogarty case the applicant had successfully brought an initial action against the United States for sex discrimination after her dismissal from a post of administrative assistant at the United States Embassy in London. Following a number of subsequent and unsuccessful applications for other employment at the Embassy, the applicant had then commenced fresh proceedings before the United Kingdom courts claiming sex discrimination, but those proceedings were discontinued because the United States Government claimed immunity from jurisdiction. It was this second set of proceedings that gave rise to the application to the Court and ultimately to the Fogarty judgment.

The Court notes that the present case can be distinguished from that of Fogarty in that it does not concern recruitment but rather the dismissal of a member of the local staff of an embassy. In spite of that difference, the Court takes the view that its finding that the restrictions in the Fogarty case pursued a legitimate aim similarly applies to the present case. It should therefore now be examined whether the impugned restriction to the applicant's right of access was proportionate to the aim pursued.

The Court found, already in the Fogarty judgment, that there was a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes, with the exception, however, of those concerning the recruitment of staff in embassies (see Fogarty, cited above, §§ 37–38).

In this connection, the Court notes that the application of absolute State immunity has, for many years, clearly been eroded. In 1979 the International Law Commission was given the task of codifying and gradually developing international law in the area of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. The Draft Articles it adopted in 1991 included one — Article 11 — on contracts of employment (see paragraph 28 above). In 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property (see paragraph 30 above).

The 1991 Draft Articles, on which the 2004 Convention (and Article 11 in particular) was based, created a significant exception in matters of State immunity by, in principle, removing from the application of the immunity rule a State's employment contracts with the staff of its diplomatic missions abroad. However, that exception was itself subject to exceptions whereby, in substance, immunity still applied to diplomatic and consular staff in cases where: the subject of the dispute was the recruitment, renewal of employment or reinstatement of an individual; the employee was a national of the employer State; or, lastly, the employer State and the employee had otherwise agreed in writing.

The report appended to the 1991 Draft Articles stated that the rules formulated in Article 11 appeared to be consistent with the emerging trend in the legislative and treaty practice of a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, § 14). This must also hold true for the 2004 Convention. Furthermore, it is a well-established principle of international law that, even if a State has not ratified a treaty, it may be bound by one of its provisions in so far as that provision reflects customary international law, either ‘codifying’ it or forming a new customary rule (see the North Sea Continental Shelf cases, ICJ Reports 1969, p. 41, § 71). Moreover, there were no particular objections by States to the wording of Article 11 of the International Law Commission's Draft Articles, at least not by the respondent State. As to the 2004 Convention, Lithuania has admittedly not ratified it but did not vote against its adoption either.

Consequently, it is possible to affirm that Article 11 of the International Law Commission's 1991 Draft Articles, on which the 2004 Convention was based, applies to the respondent State under customary international law. The Court must take this into consideration in examining whether the right of access to a court, within the meaning of Article 6 § 1, was respected.

The above finding is in fact confirmed by Lithuanian domestic law. Admittedly, Article 479 of the Code of Civil Procedure, as in force at the relevant time, enshrined the so-called absolute State immunity rule. However, on 21 December 2000 the Plenary of the Lithuanian Supreme Court adopted a decision (no. 28) regarding ‘Judicial Practice in the Republic of Lithuania in Applying Rules of Private International Law’. It stated that whilst Article 479 of the Code of Civil Procedure established a norm whereby ‘foreign States [and] diplomatic and consular representatives and diplomats of foreign States enjoy[ed] immunity from the jurisdiction of Lithuanian courts’, that rule guaranteed State immunity only for ‘legal relations governed by public law’. A contrario, that immunity rule did not apply to relations governed by private law. This conclusion confirmed the practice of the Supreme Court, which has abandoned the concept of absolute State immunity (see paragraph 22 above).

The Court further notes that the applicant was not covered by any of the exceptions enumerated in Article 11 of the International Law Commission's Draft Articles: she did not perform any particular functions closely related to the exercise of governmental authority. In addition, she was not a diplomatic agent or consular officer, nor was she a national of the employer State. Lastly, the subject matter of the dispute was linked to the applicant's dismissal.

The Court observes in particular that the applicant was a switchboard operator at the Polish Embassy whose main duties were: recording international conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events. Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish Government. Whilst the schedule to the employment contract stated that the applicant could have been called upon to do other work at the request of the head of mission, it does not appear from the case file — nor have the Government provided any details in this connection — that she actually performed any functions related to the exercise of sovereignty by the Polish State.

In its judgment of 25 June 2001 the Supreme Court stated that, in order to determine whether or not it had jurisdiction to hear employment disputes involving a foreign mission or embassy, it was necessary to establish in each case whether the employment relationship in question was one of a public-law nature (acta jure imperii) or of a private-law nature (acta jure gestionis). In the present case, however, the Supreme Court found that it had been unable to obtain any information allowing it to establish the scope of the applicant's ‘actual duties’. It therefore referred solely to the title of her position, and to the fact that Poland had invoked immunity from jurisdiction, in concluding that the duties entrusted to her had ‘facilitated, to a certain degree, the exercise by the Republic of Poland of its sovereign functions’ (see paragraph 18 above).

As to whether the duties in question were of importance for Poland's security interests — a criterion subsequently enshrined in Article 11 § 2 (d) of the 2004 Convention — the mere allegation that the applicant could have had access to certain documents or could have been privy to confidential telephone conversations in the course of her duties is not sufficient. On this point it should not be overlooked that the applicant's dismissal and the ensuing proceedings arose originally from acts of sexual harassment that had been established by the Lithuanian Equal Opportunities Ombudsman, with whom the applicant had filed her complaint. Such acts can hardly be regarded as undermining Poland's security interests.

Lastly, as to any difficulties that the Lithuanian authorities may encounter in enforcing against Poland a Lithuanian judgment in favour of the applicant, such considerations cannot frustrate the proper application of the Convention.

In conclusion, by upholding in the present case an objection based on State immunity and by declining jurisdiction to hear the applicant's claim, the Lithuanian courts, in failing to preserve a reasonable relationship of proportionality, overstepped their margin of appreciation and thus impaired the very essence of the applicant's right of access to a court.

Accordingly, there has been a violation of Article 6 § 1 of the Convention.