CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 décembre 2015

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Zupančič,   Nona Tsotsoria,   Egidijus Kūris,   Iulia Antoanella Motoc,   Gabriele Kucsko-Stadlmayer, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 13 June 2003, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Marina Kokashvili, is a Georgian national, who was born in 1962 and lives in Tbilisi. She was represented before the Court by Ms   M.   Kobakhidze, Ms   E.   Fileeva, Ms   Ts.   Javakhishvili, Ms   L.   Mukhashavria and Mr   V.   Vakhtangidze, lawyers practising in Tbilisi. 2.     The Georgian Government (“the Government”) were represented by their Agent, Mr M. Kekenadze, of the Ministry of Justice. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant was born in 1962 and lives in Tbilisi. 5.     On 1 January 1998 the Office of the Personal Representative of the Organisation for Security and Cooperation in Europe Chairman-in-Office, located in Tbilisi (“the OSCE Tbilisi office”), recruited the applicant as a local fixed-term staff member. She was assigned the tasks of an administrative and information assistant, such as drafting letters, providing interpretation and translation services, answering to telephone calls in the office, file keeping, making travelling arrangements for the Personal Representative of the OSCE and so on. According to the employment contact, the parties were entitled to terminate the contract unilaterally either by giving one month’s prior notice or upon the completion of the OSCE Tbilisi Office mandate. 6.     On 11 June 2001 the applicant, who was pregnant at that time, requested maternity leave from 18 June to 7 October 2001, which was granted by her employer. 7.     On 22 September 2001 the mission coordinator of the OSCE Tbilisi Office notified the applicant of their intention to terminate the employment contract with her on 26 October 2001 by sending her the requisite one month’s prior notice, as stipulated in the employment contract. 8.     On 26 November 2001 the applicant filed a lawsuit against the OSCE Tbilisi office with the Vake-Saburtalo Court, complaining that her dismissal had been contrary to Article 164 § 3 of the Labour Code of Georgia. 9.     In reply to the applicant’s claim, on 20 December 2001 the Office of the Secretary General of the OSCE in Vienna (“the OSCE Vienna Office”) filed comments with the Vake-Saburtalo District Court in Tbilisi, arguing that the Georgian courts lacked jurisdiction over employment disputes between the OSCE Tbilisi Office and its local staff members. In support, it referred to the Memorandum of Understanding signed between the Government of Georgia and the Personal Representative of the OSCE (“the Memorandum”) on 24 October 1995, according to which the members of the OSCE Missions and Personal Representatives enjoyed “immunity from legal process in the host country”. Consequently, the dispute arising from the job termination notice of 22 September 2001 which was clearly issued by the OSCE Tbilisi Office in the performance of their official duties could not be adjudicated under the Georgian law.   The OSCE Vienna Office invited the court to address the Ministry of Foreign Affairs of Georgia (“the MFA”) for any further clarification on the matter. 10.     On 13 February 2002 the MFA was involved as a third party to the proceedings. 11.     Since neither the respondent, the OSCE Tbilisi Office, nor the third party, the MFA, was present at the main hearing of 12 June 2002, the Vake ‑ Saburtalo District Court delivered a judgment by default on that day. The court first reasoned that international organisations could not be said to enjoy immunity from legal process with respect to labour disputes with local staff. Consequently, the Georgian legislation should be held applicable to the dispute between the applicant and the OSCE Tbilisi Office. The District Court found that the applicant’s dismissal was clearly in breach of Article 164 § 3 of the Labour Code, restoring her to the position of administrative assistant and ordering the respondent organisation to compensate her for the loss of salary from the date of her unlawful dismissal. 12.     The judgment of 12 June 2002 was never appealed by either the applicant or the respondent OSCE Tbilisi Office, whilst the MFA did not have standing to lodge an appeal as a third party, and thus became binding. 13.     On 2 October 2002 the Vake-Saburtalo District Court issued an enforcement writ. It was sent to the Enforcement Office of the Georgian Ministry of Justice. 14.     By a notification of 11 October 2002, a bailiff invited the OSCE Tbilisi Office to enforce voluntarily the judgment of 12 June 2002 within five days. In reply, the OSCE Vienna Office addressed to the MFA a note verbale stating that “as the [OSCE Tbilisi] Office does not intend to comply with the decision wrongly made by the court, the Secretariat would be grateful if the Ministry would ensure, in accordance with the relevant international law, that the [OSCE Tbilisi] Office will not be subject to any execution measures.” 15.     On 4 November 2002 the Ministry of Foreign Affairs invited the Ministry of Justice to terminate the enforcement proceedings. 16.     On 26 December 2002 the bailiff returned the enforcement writ to the applicant, officially informing her about the discontinuation of the enforcement proceedings. The notification mentioned that, in view of the debtor’s immunity from legal process in Georgia, it was impossible either to hold its administration criminally liable for the non-enforcement or to resort to any other measures of compulsory enforcement. B.     Relevant domestic law and international documents 1.     The Constitution of Georgia Article 6 § 2 “The legislation of Georgia conforms to universally recognised norms and principles of international law. International treaties or agreements concluded by Georgia, if they do not contradict the Constitution of Georgia and a constitutional agreement, take precedence over domestic normative acts.” 2.     The Act of Georgia on International Treaties of 16 October 1997 17.     Pursuant to Section 3 (a) of the Act on International Treaties, an “international treaty” was an international agreement concluded between the Georgian State and other State(s) or international organization(s) in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever was its particular designation. 18.     Section 6 of the Act stated, similarly to Article 6 § 2 of the Constitution, that an international treaty, subject to its compliance with the country’s Constitution, should take precedence over domestic statutes. 19.     Section 7 of the Act specified that the Georgian State could express its consent to be bound by an international treaty by several means, including by the signature of its representative. 20.     Sections 31, 32 § 2 and 33 of the Act provided that the Georgian State was under the obligation to abide by the commitments provided for by an international treaty in good faith, and that its executive branch of power, notably the Government represented through its various Ministries, was required to supervise that the approved international agreements were duly enforced throughout the territory of the Georgian State. 3.     The Labour Code of Georgia 21.     Article 164 § 3 of the Labour Code of Georgia, in force at the material time, read as follows: “The administration [of an organisation] shall not dismiss a pregnant woman, or a woman who has a child under three years of age, unless this organisation...has been completely liquidated...” 4.     Memorandum of Understanding between the Government of Georgia and the Personal Representative of the OSCE Chairman ‑ in ‑ office 22.     The Memorandum was signed on behalf of the Georgian State by the Minister of Foreign Affairs on 24 October 1995. Article 2 of the Memorandum provided:   “The Tbilisi Office will be manned by the Personal Representative and his Field Assistants who shall enjoy in full the legal capacity as provided for in the Provisions Concerning the Legal Capacity of the CSCE Institutions and Privileges and Immunities (Rome Council 1993/Decision no. 2), and with local staff to insure its proper functioning.” 23.     Section 15 of the above-mentioned Rome Council Decision no.   2 read as follows: “Members of OSCE Missions and Personal Representatives of the Chairman ‑ in ‑ Office enjoy immunity from legal process, even after the termination of their mission, in respect of acts, including words spoken or written, performed by them in the exercise of their functions.” 5.     The OSCE’s Staff Regulations and Staff Rules for Fixed-Term Staff 24.     On 20 July 2000 the Permanent Council of the OSCE, a major decision-making body of the Organisation, adopted, by its Decision no.   366, an amended version of the OSCE’s Staff Regulations and Staff Rules for Fixed ‑ Term Staff. This official document set out the conditions of service and the basic duties, obligations and rights of staff members of the OSCE, and, according to its Regulations 1.01 (c) and 1.02 applied “to all staff members of the OSCE Institutions holding a fixed-term appointment”, including staff occupying local posts. 25.     Regulations 11.01 and 11.02 and Rule 11.01.1 contained rules on examination of employment related disputes between coordinators of the various OSCE Institutions and fixed-term staff members. In particular, two procedures for examination of such disputes were provided for: a purely administrative one – the so-called “internal appeals procedures” – and a quasi-judicial, arbitration instance – the so-called “external appeals procedures”. Those Regulations and Rules read, in their most relevant parts, as follows: Regulation 11.01 – Internal Appeals Procedures “The Secretary General shall establish, in consultation with the other Heads of Institution, an administrative procedure with staff participation to advise the Secretary General and the Head of Institution concerned in the event of any appeal by a staff member against an administrative decision in which the staff member alleges non-observance of the terms of his/her appointment.” Rule 11.01.1 – Internal Review Board (a) In the event of an appeal by a staff member under Staff Regulation 11.01, an Internal Review Board shall be established to advise the Secretary General and the Head of Institution concerned regarding that appeal. (b) The Internal Review Board shall consist of three members as follows: (i) A Chairman designated by the Secretary General, after consultation with the Head of Institution concerned and the Staff Representatives; (ii) One member appointed by the Head of Institution concerned; (iii) One member appointed by the Staff Representatives. ...” Regulation 11.02 – External Appeals Procedures (a) Further to the procedure established in Regulation 11.01, a staff member shall have a right of final appeal to a Panel of Adjudicators against an administrative decision directly affecting him/her in accordance with the Terms of Reference of the Panel to be established by the Permanent Council. ... (b) The Panel of Adjudicators shall be appointed by the Chairman of the Permanent Council from a roster to which all participating states are invited to nominate candidates, and shall carry out its functions in accordance with the Terms of Reference referred to above.” Rule 11.02.1 – Adjudication “(a) Staff members shall have the right to appeal to a Panel of Adjudicators after compliance with the internal appeals procedure set forth in Rule 11.01.1. (b) A staff member may, in agreement with the Secretary General or the Head of Institution concerned, waive the jurisdiction of the Internal Review Board and appeal directly to the Panel of Adjudicators.” 6.     Report on OSCE Legal Capacity and on Privileges and Immunities 26.     On 26 November 2000, during its 312 th plenary meeting, the Permanent Council of the OSCE examined and endorsed a report containing a study and recommendations on the question of legal capacity of the OSCE and the granting of privileges and immunities to the organisation in the various participating States. 27.     Relevant excerpts from the report read as follows: “36. [T]absence of a constituent treaty has not prevented participating States from endowing the OSCE over the years with the attributes usually regarded as those of an international organisation: ... (b) The OSCE is no longer only a vehicle for meetings and the organisation of co ‑ operation between States; it acts as an organisation with functions of its own entrusted to it by participating States. For doctrine, such autonomy presupposes that the organisation has the necessary capacity to carry out its mandate at the international level and under public international law, i.e. that the organisation has become a subject of public international law. ... (e) The staff of the OSCE are employed by the organisation (international and local staff) and not participating States. ... (f) The OSCE has also established an internal legal structure and norms (Staff Regulations and Rules, Financial Regulations, Financial Instructions, Organisation and Administrative Directives), and its own mechanism for settling employment disputes through a Panel of Adjucators rather than national courts.” COMPLAINTS 28.     The applicant complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the binding judgment of 12 June 2002. THE LAW A.     As regards the complaint under Article 6 § 1 of the Convention 1.     The parties’ arguments 29.     The Government submitted, amongst other arguments, that even assuming an interference with the applicant’s right of access to court under Article 6 § 1 of the Convention by the relevant domestic authorities’ refusal to enforce the binding court judgment given in her favour, that interference had been justified and proportional. The decision to discontinue the enforcement proceedings had been made in the best interests of the maintenance of the meaningful cooperation between the host State, Georgia, and the OSCE Institution. The Georgian State should not be held responsible under Article 6 § 1 of the Convention for putting into practice the well-established principle of public international law, which also constituted its direct international legal obligation by virtue of the Memorandum of 24 October 1995, of securing jurisdictional immunity of international organisations. The enforcement of the judgment of 12   June 2002 represented an exclusive prerogative of the OSCE Tbilisi office, was contingent upon the organisation’s good will, and the Georgian State lacked jurisdiction to interfere. 30.     The applicant maintained that the non-enforcement of the judgment of 12 June 2002 amounted to a breach of her right to a court under Article   6   §   1 of the Convention. She asserted that, in general, there has been a trend to limit jurisdictional immunity of international organisations to acts of “public authority”, excluding disputes relating to employment contracts, as was also mentioned in the non-enforced judgment of 12 June 2002. It was thus appropriate for the domestic civil court to exercise jurisdiction over her employment dispute by applying the relevant provisions of the Labour Code of Georgia. In any event, as it was already an accomplished fact that the domestic court had exercised jurisdiction over her case by delivering the decision which had become final and binding on the parties, the significance of the proper enforcement of that judgment overrode any public interest considerations attachable to the principle of immunity from jurisdiction. 2.     The Court’s assessment 31.     The Court reiterates that a complaint about executive authorities’ failure to enforce a final and binding court decision represents an aspect of the inability to exercise fully the right to a court, within the meaning of Article   6   §   1 of the Convention (see, amongst many others, Hornsby v.   Greece , judgment of 19 March 1997, Reports 1997‑II, pp. 510-11, §§   40 et seq.; and Manoilescu and Dobrescu v. Romania and Russia (dec.), no.   60861/00, §§   66-69, ECHR 2005 ‑ VI). However, the right of access to a court is not absolute but may be subject to limitations. 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 will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, for instance, Cudak v.   Lithuania [GC], no.   15869/02, § 55, ECHR 2010; and Waite and Kennedy v.   Germany [GC], no.   26083/94, § 59, ECHR 1999-I). 32.     In the instant case the Court must therefore determine whether the non-enforcement of the judgment of 12 June 2002 was justified in the light of the applicable principles as set out above. 33.     In this respect, the Court notes that the main tenor of the applicant’s position is that her individual right to the enforcement of the domestic decision whereby the respondent OSCE Tbilisi Office was ordered to reinstate her as an administrative assistant was of such importance as to prevail over the principles of international law, including the principle of jurisdictional immunity of international organisations. The Court, however, cannot accept such a stance. Mindful of the Convention’s special character as a human rights treaty, it reiterates that this particular international instrument must be interpreted in harmony with other rules of international law of which it forms part, including those relating to the respect for jurisdictional immunity of States and international organisations (see Cudak , cited above, §§ 56-59, and Manoilescu and Dobrescu , decision cited above, § 70). 34.     Indeed, the Contracting States cannot be prevented by the Convention from establishing international organisations in order to pursue or strengthen their cooperation in certain fields of activity, or from attributing to them certain competences and according them immunities (see, for instance, Prince Hans-Adam II of Liechtenstein v. Germany   [GC], no.   42527/98, § 48, ECHR 2001‑VIII; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, §   152, ECHR   2005 ‑ VI). The attribution of privileges and immunities to international organisations is an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments, and that it pursues a legitimate aim (see Lopez Cifuentes v. Spain (dec.), no. 18754/06, § 26, 7 July 2009). To read Article   6 §   1 of the Convention and its guarantee of access to court as necessarily requiring international organisations to accept the jurisdiction of national courts, at least in respect of the conditions of employment of its staff, would, in the Court’s view, thwart the proper functioning of international organisations and run counter to the trend existing for many years now towards extending and strengthening international cooperation (see Waite and Kennedy , cited above, § 72). 35.     The Court is well aware of a current trend in international law towards an erosion of the rule of absolute State immunity as regards a State’s employment contracts with the staff of its diplomatic missions abroad (see, in particular, Cudak , cited above, § 63; and Sabeh El Leil v.   France [GC], no. 34869/05, § 53, 29 June 2011). However, contrary to what was alleged by the applicant (see paragraph 30 above) and as opposed to that of State immunity, the Court is not aware of any such trend of relaxation of jurisdictional immunity of international organisations with respect to their internal employment disputes occurring on the soil of hosting countries (see also Klausecker v. Germany (dec.), no. 415/07, §   75, 6   January 2015). All in all, the Court finds that the domestic executive authorities’ refusal to enforce the judgment of 12 June 2002 was nothing but a manifestation of the Georgian Government’s respect for the jurisdictional immunity of the Tbilisi OSCE Office, for which reason the act in question thus pursed a legitimate public aim. 36.     However, since the application of immunity from legal process had direct implications on the applicant’s right to have access to the Georgian court, the OSCE Tbilisi Office’s jurisdictional immunity would therefore only be admissible under Article 6 § 1 of the Convention if the resulting restriction was not disproportionate. In this respect, as it was already stated in a number of similar cases, a material factor for the Court in determining whether granting an international organisation immunity from jurisdiction of the domestic courts is permissible under the Convention is whether the applicants concerned had available to them reasonable alternative means to protect effectively their rights under the Convention (see Waite and Kennedy , cited above, § 68; Beer and Regan v. Germany   [GC], no.   28934/95, § 58, 18 February 1999; Klausecker , cited above, § 75, and also Chapman v. Belgium (dec.), no. 39619/06, § 51, 5 March 2013). 37.     In this respect, the Court observes that the OSCE’s Staff Regulations and Rules, which document was clearly applicable to the applicant’s situation of fixed-term local staff member (see paragraph 24 above), provided for a possibility of alternative, internal means of resolution of employment related disputes within the organisation. Thus, upon receipt of the relevant one month’s prior notice on 22 September 2001 (see paragraph   7 above), the applicant could have filed her complaint about the forthcoming termination of the employment contract first with the OSCE’s Internal Review Board and then, if need be, with that organisation’s quasi ‑ judicial body, the Panel of Adjudicators (see Regulations 11.01 and   11.92 and Rules 11.01.1 and 11.02.1, all cited above at paragraph   25 above). 38.     Having found that the applicant had a reasonable alternative opportunity of having her dispute adjudicated internally within the OSCE’s organisational setting, and reiterating that the test of proportionality cannot be applied in such a way as to compel an international organisation to submit itself to national litigation in relation to employment conditions prescribed under national labour law, the Court is satisfied that the limitation placed on the applicant’s right to have access to the Georgian courts by the grant of immunity from legal process to the OSCE Tbilisi Office had been proportionate to the legitimate aim pursued (compare with Klausecker , § 76 and also Chapman , § 56, both cited above). Therefore, the very essence of the applicant’s right of access to court under Article 6 § 1 of the Convention was not impaired. 39.     It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. B.     The remainder of the application 40.     Citing Article 13 of the Convention and Article 1 of Protocol No. 1, the applicant reiterated the complaint about the non-enforcement of the judgment given in her favour. 41.     The Government argued that that part of the application was manifestly ill-founded for the same reasons as those put forward by them with respect to the complaint under Article 6 § 1 of the Convention. 42.     The applicant disagreed. 43.     Having regard to its findings under Article 6 § 1 of the Convention above, the Court considers that the applicant’s identical complaints under Article 13 of the Convention and Article 1 of Protocol No. 1 are without merit for the very same reasons (see paragraphs 31-39 above) and must therefore be rejected as manifestly ill-founded, pursuant to Article   35 §§   3   (a) and 4 of the Convention. For these reasons, the Court, by a majority, Declares the application inadmissible.   Done in English and notified in writing on 17 December 2015.   Fatoş Aracı   András Sajó   Deputy Registrar   President