CEDH · CASELAW;CLIN;ENG — 23 mars 2010

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 128 March 2010 Cudak v. Lithuania [GC] - 15869/02 Judgment 23.3.2010 [GC] Article 6 Civil proceedings Article 6-1 Civil rights and obligations Proceedings for unfair dismissal by Embassy employee: Article   6 applicable Access to court Grant of State immunity from jurisdiction in respect of claim for unfair dismissal by Embassy employee: violation Facts – The applicant, a Lithuanian national, worked as a secretary and switchboard operator with the Polish Embassy in Vilnius. In 1999 she complained to the Lithuanian Equal Opportunities Ombudsperson of sexual harassment by a male colleague. Although her complaint was upheld, the Embassy dismissed her on the grounds of unauthorised absence from work. The Lithuanian courts declined jurisdiction to try an action for unfair dismissal brought by the applicant after finding that her employers enjoyed State immunity from jurisdiction. The Lithuanian Supreme Court found that the applicant had exercised a public-service function during her employment at the Embassy and that it was apparent from her job title that her duties had facilitated the exercise by Poland of its sovereign functions, so justifying the application of the State-immunity rule. Law – Article 6 § 1: (a)   Preliminary objection – The Court rejected a preliminary objection by the respondent Government that the applicant had had a remedy available in the Polish courts to complain about the termination of her contract. Article 35 §   1 of the Convention referred, in principle, only to remedies made available in the respondent State. In any event, even if a remedy before the Polish courts was theoretically available, it was neither accessible nor effective since, as a Lithuanian national, recruited in Lithuania under a contract governed by Lithuanian law, the applicant would have encountered serious practical difficulties in exercising it. (b)     Applicability – The applicant’s status as a civil servant did not, on the facts, exclude her from Article   6 protection. Two conditions had to be fulfilled for the exclusion to apply: the State must have expressly excluded in its national law access to a court for the post or category of staff in question, and the exclusion had to be justified on objective grounds in the State’s interest (see Vilho Eskelinen and Others v.   Finland [GC], no.   63235/00, 19   April 2007, Information Note no.   96). While it was by no means certain that the Vilho Eskelinen decision applied at all in the applicant’s case (as it concerned the relationship between a State and its own civil servants), even if it did, it could not reasonably be argued that the second condition had been fulfilled as the applicant’s duties could hardly give rise to “objective grounds [for exclusion] in the State’s interest”. Therefore, since the exclusion did not apply and the applicant’s action before the Lithuanian Supreme Court was for compensation for wrongful dismissal, it concerned a civil right within the meaning of Article 6 §   1. Conclusion : Article 6 § 1 applicable (unanimously). (c)     Compliance – The grant of immunity to a State in civil proceedings pursued the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty. The issue before the Court, therefore, was whether the impugned restriction on the applicant’s right of access to court was proportionate to those aims. In that connection, the Court noted a trend, both in international law and in the practice of a growing number of States, towards limiting the application of State immunity. Thus, Article   11 of the Draft Articles adopted by the International Law Commission in 1991 had, in principle, exempted contracts of staff employed in a State’s diplomatic missions abroad from the immunity rule. That provision (which was later to form the basis of a corresponding provision in the UN Convention on Jurisdictional Immunities of States and their Property 2004) applied to Lithuania under customary international law. Although Article   11 contained a number of exceptions that allowed immunity to continue in certain circumstances, none of these had applied in the applicant’s case. In particular, she had not performed any functions closely related to the exercise of governmental authority but had worked as a switchboard operator 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 had shown how those duties could objectively have been related to the sovereign interests of the Polish Government. Although the Supreme Court had found that the applicant’s duties had facilitated the exercise of Poland’s sovereign functions, it had done so solely on the basis of her job title and the Polish request for immunity, without any information about their true scope. As to whether the duties in question were of importance for Poland’s security interests – a criterion that had subsequently been added by Article 11 §   2   (d) of the 2004 Convention – the mere allegation that the applicant could have had access to documents or been privy to confidential telephone conversations in the course of her duties was not sufficient. Her dismissal and the ensuing legal proceedings had arisen originally from acts of sexual harassment that had been established by the Lithuanian Equal Opportunities Ombudsperson and could hardly be regarded as undermining Poland’s security interests. Lastly, the concern that the Lithuanian authorities would encounter difficulties in enforcing a judgment in favour of the applicant could not be allowed to frustrate the proper application of the Convention. In conclusion, by granting State immunity and declining jurisdiction to hear the applicant’s claim, the Lithuanian courts had impaired the very essence of the applicant’s right of access to court. Conclusion : violation (unanimously). Article 41: EUR 10,000 in respect of pecuniary and non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes