CEDH · PRESS;GCJUDGMENTS;ENG — 23 mars 2010

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Lithuania (application no. 15869/02)   LITHUANIAN AUTHORITIES BREACHED THE EUROPEAN CONVENTION ON HUMAN RIGHTS WHEN DECLINING TO HEAR A SEXUAL HARASSMENT COMPLAINT BY AN EMPLOYEE OF THE POLISH EMBASSY IN VILNIUS   Unanimously   Violation of Article   6 § 1 (right of access to a court) of the European Convention of Human Rights   Principal facts   The case concerned an application brought by a Lithuanian national, Alicija Čudak, who was born in 1961 and lives in Vilnius.   In November 1997, Ms Čudak was hired as a secretary and switchboard operator by the Embassy of the Republic of Poland in Vilnius. Her duties corresponded to those habitually expected of such a post, and were stipulated in her employment contract.   In 1999, Ms Čudak complained to the Lithuanian Equal Opportunities Ombudsperson that she was being sexually harassed by one of her male colleagues as a result of which she had fallen ill. The Ombudsperson held an inquiry and recognised that she was indeed a victim of sexual harassment.   Ms Čudak, on sick leave for two months, was not allowed to enter the building upon her return on 29 October 1999, and on two other occasions in the weeks that followed. She complained in writing to the ambassador and a few days later, on 2 December 1999, was informed that she had been dismissed for failure to come to work during the last week of November 1999. She brought an action for unfair dismissal before the civil courts, which declined jurisdiction on the basis of the doctrine of State immunity from jurisdiction, invoked by the Polish Ministry of Foreign Affairs, and according to which one State could not be subject to the jurisdiction of another. The Lithuanian Supreme Court found in particular that Ms Čudak had exercised a public-service function during her employment with the Polish Embassy in Vilnius and established that, merely from the title of her position, it could be concluded that her duties facilitated the exercise by the Republic of Poland of its sovereign functions and, therefore, justified the application of the State immunity rule.   Ms Čudak lodged her application with the European Court of Human Rights on 4 December 2001 and it was declared admissible on 2 March 2006. On 27 January 2009 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber, under Article 30 1 of the Convention.   Complaints, procedure and composition of the Court   Relying on Article 6, the applicant alleged that she was denied access to a court.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Jean-Paul Costa (France) , President , Christos Rozakis (Greece), Nicolas Bratza (United-Kingdom), Peer Lorenzen (Denmark), Françoise Tulkens (Belgium), Josep Casadevall (Andorra), Ireneu Cabral Barreto (Portugal), Corneliu Bîrsan (Romania), Vladimiro Zagrebelsky (Italy), David Thór Björgvinsson (Iceland), Dragoljub Popović (Serbia), Ineta Ziemele (Latvia), Mark Villiger (Liechtenstein), Giorgio Malinverni (Switzerland), András Sajó (Hungary), Nona Tsotsoria (Georgia), Işıl Karakaş (Turkey), Judges , and Johan Callewaert , Deputy Grand Chamber Registrar .     Decision of the Court   The court first noted that there was a trend in international law, confirmed with the adoption at the United Nations level of two international legal documents – the 1991 Draft Articles and the 2004 Convention on Jurisdictional Immunities of States and their Property – towards limiting the application of State immunity, notably by exempting contracts of staff employed in a State’s diplomatic missions abroad from the immunity rule. Immunity still applied, however, to diplomatic and consular staff in cases where the subject of the dispute was the recruitment, renewal of employment or reinstatement of an individual, or where the employee was a national of the employer State, or there was a written agreement to that effect between the employer and the employee.   Ms Čudak had not been covered by any of those exceptions. She had not performed any particular functions closely related to the exercise of governmental authority. She had not been a diplomatic agent or consular officer, nor a national of the employer State, and, lastly, the subject matter of the dispute had had to do with the applicant’s dismissal. In addition, it did not appear from the file that Ms Čudak had performed in reality any functions related to the exercise of sovereignty by the Polish State and neither the Lithuanian Supreme Court nor the Government had shown how her ordinary duties could have objectively related to the sovereign interests of the Polish State.   The mere allegation that Ms Čudak could have had access to certain documents or could have 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. Such acts could hardly be regarded as undermining Poland’s security interests.   Consequently, by declining jurisdiction to hear the applicant’s claim and accepting the Polish Government argument of State immunity, the Lithuanian courts’ decisions had impaired the very essence of Ms Čudak’s right of access to a court. Accordingly, there had been a violation of Article 6 § 1.   Under Article 41 (just satisfaction), the Court held that Lithuanian is to pay to the applicant 10,000   euros (EUR) in respect of pecuniary and non-pecuniary damage.   ***   The judgment is available in English and French. This press release is a document produced by the Registry. It does not bind the Court. Further information about the Court is available on its   website ( http://www.echr.coe.int ).     Press contacts Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Grand Chamber judgments are final (Article 44 of the Convention).