European Human Rights Law Review
2010/4
Case Comment
Cudak v Lithuania (15869/02): state immunity - embassy
worker - employment
Subject: Human rights. Other related subjects: Employment. International law
Keywords: Lithuania; Poland; Right of access to court; State immunity; Unfair dismissal
Legislation: European Convention on Human Rights 1950 art.6(1)
Case: Cudak v Lithuania (15869/02) Unreported March 23, 2010 (ECHR (Grand Chamber))
*E.H.R.L.R. 435 Facts
In November 1997 the applicant, a Lithuanian national, was hired as a secretary and
switchboard operator by the Polish Embassy in Vilnius. Her employment contract specified
that her responsibilities and tasks were limited to secretarial and switchboard duties, and that
any disputes arising under the contract would be governed by the laws of Lithuania. In 1999
the applicant complained to the Lithuanian Equal Opportunities Ombudsman that she was
being sexually harassed by a male member of the diplomatic staff. The Ombudsman's enquiry
found that she was a victim of sexual harassment. The applicant then took sick leave for two
months. Upon her return to work on October 29 she was not permitted to enter the Embassy
building and was denied access again on November 22 and 23. On November 26, the
applicant wrote a letter to the Polish Ambassador informing her of the incidents. On December
2 she was informed that she had been dismissed for failure to come to work between
November 22 and 29.
*E.H.R.L.R. 436 The applicant brought a civil claim for compensation for unfair dismissal
before the Lithuanian courts. The Polish Government claimed state immunity and on August
2, 2000 the Vilnius Regional Court discontinued the case for lack of jurisdiction. The
Lithuanian Supreme Court upheld the decision.
The applicant applied to the Strasbourg court arguing that she had been deprived of her right
of access to a court in breach of her rights under art.6(1).
Held
(1) The Lithuanian Government's preliminary objection was rejected.
The Government argued that, both in theory and in practice, the applicant could have brought
proceedings in the Polish courts. The Court rejected this suggestion that the applicant had
failed to exhaust domestic remedies. Article 35 refers in principle only to remedies that are
made available by the respondent state; it did not therefore cover in this case remedies
available in Poland. Further, such a remedy, even if theoretically available, was a not a
realistic or practical one given that under the applicant's contract of employment the Polish
courts would have to apply Lithuanian law.
(2) Article 6(1) was applicable and had been breached.
The Government argued that the application should be declared incompatible ratione materiae
with the Convention, the applicant being a civil servant and therefore outside the protection of
art.6 under the twofold test established by the Court in Vilho Eskelinen : that the state in its
national law must have expressly excluded access to a court for the post or category of staff
in question and that the exclusion must be justified on objective grounds in the state's
interest. The Court was skeptical as to whether the test was relevant in this case, as the
applicant was a civil servant of Poland, not Lithuania. Even supposing the test did apply, the
second condition was not fulfilled, as the applicant's duties were such that they did not give
rise to objective grounds for excluding her art.6 rights in the state's interest. Article 6(1) was
therefore applicable.
The Court reiterated that art.6(1) guarantees the right of access to a court, though this right
may be subject to limitations, as to which contracting states have a certain margin of
appreciation. It further noted that any limitation of the right of access to a court must pursue
a legitimate aim, have a reasonable relationship of proportionality to that aim, and must not
restrict or reduce the access in such a way that the very essence of the right is impaired. As
the Court had established in Fogarty, 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.
Pursuant to art.31 of the Vienna Convention on the Law of Treaties the Convention has to be
interpreted taking into account any relevant rules of international law applicable to the
relationship between the parties. From this it follows that measures taken by a contracting
state which reflect generally recognised rules of public international law on state immunity
cannot in principle be regarded as a disproportionate limitation on the right of access to a
court. The Court noted that in 2004 the United Nations General Assembly adopted the
Convention on Jurisdictional Immunities of States and their Property (“the 2004 Convention”),
art.11(1) of which states that a state cannot invoke immunity from jurisdiction in the
otherwise competent court of another state in a proceeding relating to a contract of
employment, except in the circumstances provided in art.11(2). Those circumstances include
where: (a) the employee performs functions in the exercise of government authority; (b) the
employee is a person enjoying diplomatic immunity; (c) the subject matter of the proceedings
is *E.H.R.L.R. 437 recruitment, reinstatement or renewal of employment; and (d) the
subject matter of the proceedings is the dismissal or termination of employment and those
proceedings would interfere with the security interests of the employing state.
Although Lithuania had not ratified the 2004 Convention it did not vote against it in the United
Nations. The Court observed that it is a well-established principle of international law that,
even if a state has not ratified a treaty, it can be bound by one of its provisions to the extent
that the provision reflects customary international law. The Court found that art.11 of the
2004 Convention was such a case, noting that it had already been found in Fogarty (prior to
the adoption of the 2004 Convention) that there was a trend in international and comparative
law towards limiting State immunity in respect of employment related disputes (with the
exception of the recruitment of embassy staff).
The Court found that the applicant did not fall within any of the exceptions in art.11(2) of the
2004 Convention, distinguishing this case from Fogarty on the grounds that the latter
concerned recruitment by a foreign embassy and therefore would fall within art.11(2)(c),
whereas this case concerned dismissal. In particular, it held that the mere fact that the
applicant could have had access to certain documents or been privy to certain
communications in the course of her duties was not sufficient to show that her duties were of
importance for Poland's security interests, nor were her duties objectively related to Poland's
sovereign interests. The Court noted that the proceedings arose originally from acts of sexual
harassment against the applicant by another member of the embassy staff, and such acts
could hardly be regarded as undermining Poland's security interests. Further, any practical
difficulties the Lithuanian authorities may have had in enforcing a Lithuanian judgment
against Poland were not sufficient reasons to frustrate the proper application of the
Convention. In declining jurisdiction to hear the applicant's claim on the grounds of Poland's
state immunity, the Lithuanian courts, by 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.
(3) The applicant was awarded ##10,000 in respect of pecuniary and non-pecuniary
damages.
Cases considered
Aït-Mouhoub v France (2000) 30 E.H.R.R. 382
B%24ele%24s v Czech Republic (App. No.47273/99), judgment of November 12, 2002
Colozza v Italy (1985) 7 E.H.R.R. 516
Editions Périscope v France (1992) 14 E.H.R.R. 597
Fayed v United Kingdom (1994) 18 E.H.R.R. 393
Fogarty v United Kingdom (2002) 34 E.H.R.R. 12
Golder v United Kingdom (1979-80) 1 E.H.R.R. 524
Kalogeropoulou v Greece and Germany (App. No.59021/00), decision of December 12, 2002
Öcalan v Turkey (2005) 41 E.H.R.R. 45
Pélissier and Sassi v France (2000) 30 E.H.R.R. 715
Prince Hans-Adam II of Liechtenstein v Germany (App. No.42527/98), judgment of July 12,
2001
Sejdovic v Italy (2006) 42 E.H.R.R. 17
T.P. and K.M. v United Kingdom (2002) 34 .E.H.R.R. 2
United Communist Party v Turkey (1998) 26 E.H.R.R. 121
Vilho Eskelinen v Finland (2007) 45 E.H.R.R. 43
Waite and Kennedy v Germany (2000) 30 E.H.R.R. 261
Zander v Sweden (1994) 18 E.H.R.R. 175
*E.H.R.L.R. 438 Commentary
The Court followed and re-affirmed the line of reasoning it had adopted in Fogarty : that state
immunity in principle pursued the legitimate aim of good relations between states; that the
Convention is to be interpreted in the light of any relevant rules of international law; and
therefore limitations which reflected generally recognised rules of international law would not
in principle be disproportionate. It did not expressly say so, but from this conclusion the Court
appears to infer that limitations which do not reflect generally recognised rules of
international law are likely to be disproportionate. The relevant international law the Court
identified was the 2004 Convention, art.11 of which the Court considered was sufficiently
reflectively of customary international law to bind Lithuania despite its non-ratification.
Two judges (Cabral Barreto and Popović) disagreed that a state could ever be bound by a
treaty it had not signed, arguing rather that a State is bound by the customary international
law that a treaty may be reflective of. However this point did not prevent the two judges from
arriving at the same conclusions as the others.
There may be some scope to query this, as the text of art.11 of the 2004 Convention is subtly
different from what the Court found in Fogarty to be the position in customary international
law. In Fogarty , at [37] the Court observed that:
“… there appears to be a trend in international and comparative law towards limiting State
immunity in respect of employment-related disputes. However, where the proceedings relate
to employment in a foreign mission or embassy, international practice is divided on the
question whether State immunity continues to apply and, if it does so apply, whether it covers
disputes relating to the contracts of all staff or only more senior members of the mission.
Certainly, it cannot be said that the United Kingdom is alone in holding that immunity
attaches to suits by employees at diplomatic missions or that, in affording such immunity, the
United Kingdom falls outside any currently accepted international standards.”
Thus the view of the Court in Fogarty was that customary international law would at least
countenance state immunity attaching to all suits by employees of diplomatic missions,
including, one would have thought, a case such as Ms %24Cudak's, whereas the position
under art.11 of the 2004 Convention is more limited: state immunity can only apply in
employment suits if one of the exceptions in art.11(2) applies.
The claim of state immunity in the Fogarty case was made in 1997, only three years before
the claim made in the present case. The facts of both cases pre-date the adoption of the 2004
Convention.
The Court's conclusion in this case that the 2004 Convention reflected customary international
law was based on the International Law Commission's 1991 Draft Articles, the report
appended to which stated that the rules appeared to be consistent with the emerging trend in
the legislative and treaty practice of international states. Thus the Court appears to be saying
that art.11 of 2004 Convention reflects the position of customary international law since at
least 1991, yet in 2002 in Fogarty it held that a position it now holds to be incompatible with
art.11 was within currently accepted international standards. Thus the point on which Judges
Cabral Barreto and Popović took issue in fact appears crucial to the issue of proportionality. If,
as the majority felt, Lithuania can be bound by a treaty that it has not signed, then the
Court's application of art.11 of the 2004 Convention to assess proportionality would seem
correct and would lead to the conclusion drawn. But if the minority are correct, then the
discrepancy between art.11 of the 2004 Convention and the Court's statement in Fogarty
would indicate that there is a sufficient degree of ambiguity in customary international law on
this topic that the Court's finding does not necessarily follow.
E.H.R.L.R. 2010, 4, 435-438