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SABEH EL LEIL v. FRANCE - 34869/05 [2011] ECHR 1055 (29 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1055.html
Cite as:
[2011] ECHR 1055,
[2011] IRLR 781,
(2012) 54 EHRR 14,
54 EHRR 14
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GRAND
CHAMBER
CASE OF
SABEH EL LEIL v. FRANCE
(Application
no. 34869/05)
JUDGMENT
STRASBOURG
29 June
2011
This
judgment is final but may be subject to editorial revision.
In the case of Sabeh El Leil v. France,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Nicolas
Bratza,
President,
Jean-Paul
Costa,
Christos
Rozakis,
Peer
Lorenzen,
Françoise
Tulkens,
Corneliu
Bîrsan,
Karel
Jungwiert,
Lech
Garlicki,
David
Thór Björgvinsson,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
George
Nicolaou,
Ann
Power,
Zdravka
Kalaydjieva,
Mihai
Poalelungi,
Angelika
Nußberger,
Julia
Laffranque,
Judges,
and
Vincent Berger, Jurisconsult,
Having
deliberated in private on 19 January and 1st June 2011,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 34869/05) against the French
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a French national, Mr Farouk Sabeh El Leil
(“the applicant”), on 23 September 2005.
The
applicant was represented by Ms C. Waquet, of the Conseil d’Etat
and Court of Cassation Bar. The French Government (“the
Government”) were represented by their Agent, Mrs E. Belliard,
Director of Legal Affairs, Ministry of Foreign Affairs.
The
applicant alleged that he had been deprived of his right of access to
a court as a result of the immunity from jurisdiction upheld by the
domestic courts.
The
application was allocated to the Fifth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 21 October 2008 it was
declared admissible by a Chamber of that Section composed of the
following judges: Rait Maruste, President, Jean-Paul Costa,
Karel Jungwiert, Renate Jaeger, Mark Villiger, Isabelle Berro-Lefèvre
and Zdravka Kalaydjieva, and also Claudia Westerdiek, Section
Registrar. On 9 December 2008 the Chamber relinquished jurisdiction
in favour of the Grand Chamber, neither of the parties having
objected to relinquishment (Article 30 of the Convention and Rule
72).
The
composition of the Grand Chamber was determined according to the
provisions of Article 26 §§ 4 and 5 of the Convention and
Rule 24 of the Rules of Court.
The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Grand Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine), the parties replied
in writing to each other’s observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
Under
a contract of indefinite duration dated 25 August 1980, the applicant
was appointed by the State of Kuwait as accountant in the Kuwaiti
embassy in Paris. He became head accountant on 17 April 1985,
when a note by the Ambassador entitled “Organisation of
Accounts Department at Kuwaiti Embassy in Paris” set out the
applicant’s duties as follows:
“(a) To oversee all the work of the accounts
department.
(b) To supervise the staff working in that department in
respect of the tasks assigned to them, and to ensure compliance with
the rules governing working hours and the volume and distribution of
work.
(c) The above-mentioned accountant must sign all payment
orders, accounting invoices and everything connected with that
activity.
(d) In addition the accountant is entrusted with the
management of administrative tasks.
(e) The accountant shall be accountable to his superiors
for any shortcomings in respect of everything connected with the work
of his department.”
On
3 December 1999 some twenty employees of the Embassy signed a
statement to the effect that the applicant had, since his
appointment, unofficially assumed the role of staff representative,
with the result that he had resolved all disputes between the staff
and the diplomatic mission for the past nineteen years.
A
certificate of employment dated 19 January 2000 indicates that the
applicant “is employed by the Embassy as Head Accountant”.
On
27 March 2000 the applicant’s contract was terminated on
the following economic grounds:
“The restructuring of all the Embassy’s
departments, in accordance with general instructions from the
Ministry of Foreign Affairs of the State of Kuwait.
The Embassy is obliged to abolish your post as a result
of the new regulations of the Ministry of Foreign Affairs of the
State of Kuwait.”
Disagreeing
with the reasons given for the termination, the applicant brought
proceedings in the Paris Employment Tribunal (conseil de
prud’hommes) seeking various sums in compensation for
dismissal without genuine or serious cause.
In
a judgment of 29 November 2000, the Employment Tribunal began by
refusing to allow the objection to admissibility raised by the State
of Kuwait, finding as follows:
“A plea of inadmissibility has been raised on
grounds of jurisdictional immunity.
Whilst Article 31 of the Vienna Convention provides that
diplomatic agents enjoy immunity from the criminal jurisdiction of
the receiving State, and also from its civil and administrative
jurisdiction, the latter immunity does not cover actions relating to
any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.
Mr Farouk Sabeh El Leil was recruited and employed in
France, under a contract of indefinite duration signed in Paris and
performing [sic] in French territory.
His pay statements bear a SIRET [registration] number.
The letter summoning him to a preliminary meeting fully
satisfies the provisions of Article L.122-14-4 of the Labour Code,
indicating that Mr Farouk Sabeh El Leil was entitled to be assisted
by a third party from the list kept by the préfecture.
In the present case, the duties of head accountant
entrusted to Mr Farouk Sabeh El Leil in an internal management
context fell within the framework of an expressly private-law
activity and the jurisdiction of the ordinary French courts, as the
employer has acknowledged through the above-mentioned elements.”
On
the merits, the Employment Tribunal found that the termination of the
applicant’s employment “which was decided abruptly after
twenty years of irreproachable work without punishment or criticism”,
had not been based on a genuine and serious cause. It awarded the
applicant a sum representing twelve months of salary by way of
compensation for dismissal without a genuine and serious cause, plus
compensation in lieu of notice, together with sums in respect of
unpaid overtime, time off in lieu that he had not been able to take,
annual leave, and his inability to register with the ASSEDIC
(“Association for employment in industry and commerce”)
from which he was entitled to receive unemployment benefit, amounting
to a total of 539,358 francs (equivalent to 82,224.60 euros).
Moreover, the Employment Tribunal ordered the employer to issue the
applicant with a certificate of employment and two pay statements,
failing which it would be fined 1,000 francs per day.
Disagreeing
with the amount of the award, the applicant lodged an appeal against
the judgment.
In
a judgment of 22 October 2002 the Paris Court of Appeal set aside
that judgment, finding as follows:
“Admissibility of the claims
The State of Kuwait argued that Mr Sabeh El Leil’s
claims were inadmissible on account of its jurisdictional immunity.
Mr Sabeh El Leil challenged the plea of inadmissibility,
arguing that such immunity did not extend to proceedings concerning
contracts of employment.
He considers that his duties as head accountant fell
expressly within the framework of a private-law activity rather than
an activity of governmental authority.
Mr Sabeh El Leil’s claims are directed against the
State of Kuwait, represented by its embassy and its Ambassador in
Paris and not against the embassy’s director himself.
It must therefore be ascertained whether, in the present
case, the State of Kuwait enjoys the jurisdictional immunity afforded
to foreign States.
Mr Sabeh El Leil’s last post was that of head
accountant in the embassy’s accounts department.
He also assumed certain additional responsibilities:
responsibility for administrative matters, responsibility for legal
affairs, responsibility for the payment and follow-up of financial
contributions concerning the Kuwait Boundary Demarcation Commission,
and responsibility for supervising the bank accounts of the Council
of Arab Embassies [sic].
Mr Sabeh El Leil, in view of his level of responsibility
and the nature of his duties as a whole, did not perform mere acts of
management but enjoyed a certain autonomy which meant that he carried
out his activities in the interest of the public diplomatic service.
He thus participated in acts of governmental authority
of the State of Kuwait through its diplomatic representation in
France.
His claims against the State of Kuwait are thus
inadmissible by virtue of the principle of jurisdictional immunity of
foreign States.”
The
applicant appealed against that judgment to the Court of Cassation.
In his full pleadings he challenged the finding that his claims
against the State of Kuwait were inadmissible. He invoked a breach of
Article 455 of the New Code of Civil Procedure, on the ground that
the judgment had not given sufficient reasons, since the
inadmissibility had been based:
“on the mere assertion that outside his
accounting duties [he] assumed responsibilities in administrative
matters, legal affairs ..., leading to the conclusion that in view of
his level of responsibility and the nature of his duties as a whole,
he did not perform mere acts of management but enjoyed a certain
autonomy which meant that he carried out his activities in the
interest of the public diplomatic service and participated in acts of
governmental authority of the State of Kuwait ...”
He
developed his arguments as follows:
“The judgment appealed against purportedly applied
the principle whereby ‘foreign States and bodies acting for
them or on their behalf enjoy jurisdictional immunity not only for
acts of governmental authority but also for acts performed in the
interest of a public service’ ...
This principle implies,
conversely, that the immunity of the foreign
State from jurisdiction does not apply, in matters of employment
contracts, where the employee had ‘no particular responsibility
in the performance of public service, such that his dismissal
constituted an act of administration’ ...
That was precisely the situation of
[the applicant], who performed accountancy
duties only.”
On
23 March 2005 the Court of Cassation, ruling in the context of the
preliminary admissibility procedure for appeals on points of law, as
provided for by Article L. 131-6 of the Code of Judicial
Organisation, held that the ground of appeal was “not such as
to warrant admitting the appeal on points of law”.
II. RELEVANT INTERNATIONAL LAW AND DOMESTIC LAW AND
PRACTICE
A. State immunity from jurisdiction
1. International law
State
immunity from jurisdiction is governed by customary international
law, the codification of which is enshrined in the United Nations
Convention on Jurisdictional Immunities of States and their Property
of 2 December 2004 (“the 2004 Convention”). The principle
is based on the distinction between acts of sovereignty or authority
(acte jure imperii) and acts of commerce or administration
(acte jure gestionis).
Article
11 (Contracts of employment) of the convention reads as follows:
“1. Unless otherwise agreed between the States
concerned, a State cannot invoke immunity from jurisdiction before a
court of another State which is otherwise competent in a proceeding
which relates to a contract of employment between the State and an
individual for work performed or to be performed, in whole or in
part, in the territory of that other State.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform
particular functions in the exercise of governmental authority;
(b) the employee is:
(i) a diplomatic agent, as defined in the Vienna
Convention on Diplomatic Relations of 1961;
(ii) a consular officer, as defined in the Vienna
Convention on Consular Relations of 1963;
(iii) a member of the diplomatic staff of a permanent
mission to an international organization or of a special mission, or
is recruited to represent a State at an international conference; or
(iv) any other person enjoying diplomatic immunity;
(c) the subject-matter of the proceeding is the
recruitment, renewal of employment or reinstatement of an individual;
(d) the subject-matter of the proceeding is the
dismissal or termination of employment of an individual and, as
determined by the head of State, the head of Government or the
Minister for Foreign Affairs of the employer State, such a proceeding
would interfere with the security interests of that State;
(e) the employee is a national of the employer
State at the time when the proceeding is instituted, unless this
person has the permanent residence in the State of the forum; or
(f) the employer State and the employee have
otherwise agreed in writing, subject to any considerations of public
policy conferring on the courts of the State of the forum exclusive
jurisdiction by reason of the subject-matter of the proceeding.”
In
the Draft Articles on Jurisdictional Immunities of States and their
Property, adopted by the International Law Commission at its
forty-third session in 1991, and submitted to the General Assembly at
that session, Article 11 read as follows:
“1. Unless otherwise agreed between the States
concerned, a State cannot invoke immunity from jurisdiction before a
court of another State which is otherwise competent in a proceeding
which relates to a contract of employment between the State and an
individual for work performed or to be performed, in whole or in
part, in the territory of that other State.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform functions
closely related to the exercise of governmental authority;
(b) the subject of the proceeding is the recruitment,
renewal of employment or reinstatement of an individual;
(c) the employee was neither a national nor a habitual
resident of the State of the forum at the time when the contract of
employment was concluded;
(d) the employee is a national of the employer State at
the time when the proceeding is instituted; or
(e) the employer State and the employee have otherwise
agreed in writing, subject to any considerations of public policy
conferring on the courts of the State of the forum exclusive
jurisdiction by reason of the subject-matter of the proceeding.”
In
the commentary on that Article the Commission indicated as follows:
“Paragraph 2 (b) is designed to confirm the
existing practice of States in support of the rule of immunity in the
exercise of the discretionary power of appointment or non-appointment
by the State of an individual to any official post or employment
position. ... So also are the acts of ‘dismissal’ or
‘removal’ of a government employee by the State, which
normally take place after the conclusion of an inquiry or
investigation as part of supervisory or disciplinary jurisdiction
exercised by the employer State. This subparagraph also covers cases
where the employee seeks the renewal of his employment or
reinstatement after untimely termination of his engagement. The rule
of immunity applies to proceedings for recruitment, renewal of
employment and reinstatement of an individual only. It is without
prejudice to the possible recourse which may still be available in
the State of the forum for compensation or damages for ‘wrongful
dismissal’ or for breaches of obligation to recruit or to renew
employment.”
The
2004 Convention on Jurisdictional Immunities of States and their
Property was signed by France on 17 January 2007. The Bill
authorising its ratification is currently being examined by the
National Assembly, the Senate having approved the following text at
First Reading on 22 December 2010:
“Single
Article
The ratification of the United Nations Convention on
Jurisdictional Immunities of States and their Property, adopted on 2
December 2004 and signed by France on 17 January 2007 is hereby
authorised.”
For
a more comprehensive overview see Cudak v. Lithuania ([GC],
no. 15869/02, §§ 25 et seq., ECHR 2010 ...).
2. Case-law of the Court of Cassation
The
Court of Cassation considers that a foreign State only enjoys
jurisdictional immunity when the act giving rise to the dispute is an
act of governmental authority or has been performed in the exercise
of a public service (Court of Cassation, First Civil Division, 25
February 1969, no. 67-10243, Bull. I, no. 86). In other words it
verifies, on a case-by-case basis, whether the act, by its nature or
purpose, has contributed to the exercise of the foreign State’s
sovereignty, as opposed to an act of administration (Court of
Cassation, Combined Divisions, 20 June 2003, appeals nos. 00-45629
and 00-45630, Bull. Ch. M. no. 4).
Applying
this criterion, the Court of Cassation found that jurisdictional
immunity could not be granted in a dispute concerning an embassy
employee who had no particular responsibility in the exercise of the
public diplomatic service (Court of Cassation, First Civil Division,
11 February 1997, appeal no. 94-41871, Bull. I no. 49, for a
caretaker; Court of Cassation, Employment Division, 10 November 1998,
appeal no. 96-41534, Bull. V no. 479, concerning a nurse-medical
secretary; and Court of Cassation, Employment Division, 14 December
2005, appeal no. 03-45973, in respect of a senior clerk in the
national section of a consulate). The same principle applies where a
State decides to close a consular mission: whilst it enjoys
jurisdictional immunity as regards the assessment of the reasons for
the closure decision, the French courts retain the power to verify
the reality of the closure and to rule on the consequences of any
redundancy caused thereby (Court of Cassation, Employment Division,
31 March 2009, appeal no. 07-45618, Bull. V no. 92).
The
assessment of that criterion, however, falls within the unfettered
discretion of the Court of Appeal for the final decision on the facts
and evidence (Court of Cassation, Employment Division, 9 October
2001, appeal no. 98-46214, concerning a translator in the
passport office).
B. French Code of Civil Procedure
The
relevant provision of the Code of Civil Procedure reads as follows:
Article 455
“Judgments shall set forth
succinctly the respective claims of the parties and their grounds.
Such presentation may take the form of a reference to the pleadings
of the parties with an indication of their date. Judgments shall be
reasoned.
They shall state the decision in an operative
paragraph.”
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
The
Government raised a preliminary objection to the effect that domestic
remedies had not been exhausted.
A. The Chamber’s findings
The
Chamber declared the application admissible, after rejecting the
Government’s objection that domestic remedies had not been
exhausted, finding that the applicant had raised the complaint under
Article 6 of the Convention in substance in his appeal on points of
law, since he had challenged the Court of Appeal’s findings as
to the exact scope of his duties and responsibilities and had argued
that the principle of the foreign State’s jurisdictional
immunity did not apply, in matters of employment contracts, when the
employee, like himself, had no particular responsibility in the
exercise of the public service.
B. The parties’ submissions
1. The Government
The
Government reiterated their objection as to non-exhaustion of
domestic remedies, since the applicant had not raised, in support of
his appeal on points of law, the question of his lack of access to a
court. They took the view that the single ground of appeal in his
written submissions to the Court of Cassation had concerned a breach
of the obligation to state reasons, not the actual principle of the
State of Kuwait’s jurisdictional immunity.
2. The applicant
The
applicant pointed out that, in his appeal on points of law, he had
submitted arguments challenging the application to his case of the
principle of jurisdictional immunity of a foreign State, and had thus
precisely contested the infringement of his right to a fair hearing.
He added that, in his pleadings before the Court of Appeal, he had
already raised in substance his complaint about a violation of
Article 6 § 1 of the Convention, since he had developed at
length the argument that his employer could not be granted such
immunity.
C. The Grand Chamber’s assessment
The
Grand Chamber reiterates that the purpose of Article 35 of the
Convention is to afford the Contracting States the opportunity of
preventing or putting right the violations alleged against them
before those allegations are submitted to the Convention institutions
(see, for example, Hentrich v. France, 22 September 1994,
§ 33, Series A no. 296-A; Remli v. France, 23 April 1996,
§ 33, Reports of Judgments and Decisions 1996-II;
and Selmouni v. France [GC], no. 25803/94, § 74, ECHR
1999 V). Consequently, States are dispensed from answering for
their acts before an international body before they have had an
opportunity to put matters right through their own legal system. That
rule is based on the assumption, reflected in Article 13 of the
Convention – with which it has close affinity – that
there is an effective remedy available in respect of the alleged
breach in the domestic system. In this way, it is an important aspect
of the principle that the machinery of protection established by the
Convention is subsidiary to the national systems safeguarding human
rights (see Handyside v. the United Kingdom, 7 December 1976,
§ 48, Series A no. 24, and Akdivar and Others v. Turkey,
16 September 1996, § 65, Reports 1996 IV). Thus the
complaint intended to be made subsequently to the Court must first
have been made – at least in substance – to the
appropriate domestic body, and in compliance with the formal
requirements and time-limits laid down in domestic law (see Cardot
v. France, 19 March 1991, § 34, Series A no. 200,
and Selmouni, cited above).
In
the present case the Grand Chamber notes that, in his full pleadings
in support of his appeal on points of law, the applicant challenged
the findings of the Paris Court of Appeal as to the exact scope of
his duties. His single ground of appeal criticised the Court of
Appeal’s finding that he “enjoyed a certain autonomy
which meant that he carried out his activities in the interest of the
public diplomatic service and participated in acts of governmental
authority of the State of Kuwait”. Moreover, his arguments
directly and expressly concerned the question of the foreign State’s
jurisdictional immunity, challenging the application of this
principle to his case.
In
those circumstances, the Grand Chamber takes the view, like the
Chamber, that the complaint submitted to it was actually made in
substance before the domestic courts. Accordingly, the Government’s
preliminary objection must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant claimed that he had been deprived of his right of access to
a court on account of the jurisdictional immunity invoked by his
employer and upheld by the domestic courts. He relied on Article 6 §
1 of the Convention, of which the relevant part reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Applicability of Article 6 § 1
As
regards the applicability of Article 6 § 1, the Government left
the matter to the Court’s discretion.
The
applicant submitted that he unquestionably possessed a right which
was the subject of a dispute (contestation), that his claims
were civil in nature and that Article 6 was applicable.
The
Court refers to its finding in Vilho Eskelinen that in order
for the respondent State to be able to rely before the Court on the
applicant’s status as a civil servant in excluding the
protection embodied in Article 6, two conditions must be fulfilled.
First, the State in its national law must have expressly excluded
access to a court for the post or category of staff in question.
Secondly, the exclusion must be justified on objective grounds in the
State’s interest (see Vilho Eskelinen and Others v. Finland
[GC], no. 63235/00, § 62, ECHR 2007 IV). It should be
pointed out, however, that that judgment concerned relations between
the State and its own civil servants, thus differing from the present
case.
Moreover,
it cannot reasonably be argued that the second condition has been
fulfilled in the applicant’s situation. It can be seen from the
documents before the Court that he was employed as an accountant,
then as head accountant from 17 April 1985, in the Kuwaiti
embassy. The Court is of the opinion that the performance of such
duties cannot, in itself, justify an exclusion based on objective
grounds in the State’s interest, within the meaning of the
above-cited Vilho Eskelinen judgment.
It
remains to be examined whether the dispute in question concerned a
civil right within the meaning of Article 6 § 1. In this
connection the Court points out that Article 6 § 1 applies to
disputes (contestations) concerning civil “rights”
which can be said, at least on arguable grounds, to be recognised
under domestic law, whether or not they are also protected by the
Convention (see, in particular, Editions Périscope v.
France, 26 March 1992, § 35, Series A no. 234 B,
and Zander v. Sweden, 25 November 1993, § 22, Series
A no. 279 B). The dispute may relate not only to the actual
existence of a right but also to its scope and the manner of its
exercise; and, finally, the result of the proceedings must be
directly decisive for the right in question (see Vilho Eskelinen,
cited above, § 40). The Court has thus previously found Article
6 applicable in respect of a civil servant in the employ of a
secondary school who had been appointed as accountant and did not
participate in the exercise of powers conferred by public law (see
Martinie v. France [GC], no. 58675/00, § 30,
ECHR 2006 ...). The Court reached the same conclusion as
regards a former employee of a foreign embassy who was seeking
compensation for unfair dismissal (see Cudak, cited above, §
46).
The
Court finds in the present case that the above-mentioned conditions
are fulfilled, as the applicant’s action before the French
courts concerned compensation for dismissal without genuine and
serious cause.
Accordingly,
Article 6 § 1 of the Convention was applicable in the present
case.
B. Compliance with Article 6 § 1
1. The parties’ arguments
(a) The applicant
The
applicant submitted that, according to the Court’s case-law,
any restrictions on the right to a court based on immunity from
jurisdiction must be subject to a strict review of proportionality
between the actual interference with that right and the aim pursued.
He took the view that his action was admissible under the relevant
case-law of the Court of Cassation. In his submission, his
application was particularly well-founded in the light of the Cudak
judgment (cited above), in which the Court had found that Article 11
of the UN Convention on Jurisdictional Immunities of States and their
Property was applicable to the respondent State. He understood that
this convention, signed by France in 2007, was currently pending
ratification by the Senate. He also indicated that the French Court
of Cassation did not regard as absolute the international-law
principle of jurisdictional immunity of foreign States. He had not
performed any particular functions related to the exercise of
governmental authority and his duties certainly did not have any
bearing on the security interests of the State of Kuwait, within the
meaning of Article 11 § 2 (d) of the above-mentioned Convention
on Immunities. Lastly, he had been neither a diplomatic or consular
agent nor a national of the State of Kuwait, and his dispute
concerned labour law.
(b) The Government
The
Government considered that the restriction on the applicant’s
right of access to a court had pursued a legitimate aim and was
proportionate to that aim, being consistent with the principles laid
down in Fogarty v. the United Kingdom ([GC], no. 37112/97,
ECHR 2001 XI (extracts)), and Cudak (cited
above). They observed that in its Cudak judgment the Court had
stated that it was necessary to take account of customary
international law: in that context, it had therefore been for the
Court of Appeal to determine whether the applicant’s duties
were such that he participated in the exercise of the sovereignty of
the State of Kuwait and thus whether the principle of immunity from
jurisdiction was applicable. That principle had been upheld after an
assessment of the facts by reference to the applicant’s duties
as a whole, according to the realistic approach that must prevail in
the implementation of the rules of international law. In view of his
level of responsibility and of the nature of all his duties, it could
not be considered that, by granting immunity to Kuwait, France had
overstepped its margin of appreciation.
The
Government argued in this connection that there were a number of
fundamental differences between the present case and that of Cudak:
in the latter, the Lithuanian Supreme Court had inferred from the
title of the applicant’s duties that she participated in the
exercise of governmental authority, although that had not been
demonstrated; and the applicant’s dismissal had originally
arisen from her harassment by one of her colleagues, a member of the
diplomatic staff. In the present case, by contrast, there had been no
reprehensible conduct on the part of an embassy staff member directed
against the applicant; he had been employed as head accountant, not
as a switchboard operator; and the Court of Appeal had based its
judgment on the duties actually performed, not on inferences, in the
light of the documents produced. As regards those documents, the
Government indicated that they had been returned to the parties
following the close of the proceedings and that reference could thus
only be made to the judgment of the Court of Appeal.
2. The Court’s assessment
(a) General principles
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 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
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; Fogarty, cited above, § 33; and Cudak,
cited above, § 55).
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 (see Fogerty,
cited above, § 35). 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 Loizidou
v. Turkey (merits), 18 December 1996, § 43, Reports
1996 VI; Fogarty, cited above, § 35; and Cudak,
cited above, § 56).
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 rule of State immunity (see
Al-Adsani v. the United Kingdom [GC], no. 35763/97, §
56, ECHR 2001 XI; Kalogeropoulou and Others v. Greece and
Germany (dec.), no. 59021/00, ECHR 2002-X; Fogarty, cited
above, § 36; and Cudak, cited above, § 57).
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 rule 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
justified such restriction.
The
Court further reiterates that such limitation must pursue a
legitimate aim and 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 (see Cudak, cited above, § 60, and Al-Adsani,
cited above, § 54). It has taken the view 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 (ibid.).
In
addition, the impugned restriction must also be proportionate to the
aim pursued. In this connection, the Court observes that the
application of absolute State immunity has, for many years, clearly
been eroded, in particular with the adoption of the Convention on
Jurisdictional Immunities of States and their Property by the United
Nations General Assembly in 2004 (see Cudak, cited above, §
64). This convention is based on Draft Articles adopted in 1991, of
which Article 11 concerned contracts of employment and created a
significant exception in matters of State immunity, the principle
being that the immunity rule does not apply to a State’s
employment contracts with the staff of its diplomatic missions
abroad, except in the situations that are exhaustively enumerated in
paragraph 2 of Article 11 (ibid., § 65).
Furthermore,
it is a well-established principle of international law that a treaty
provision may, in addition to the obligations it creates for the
Contracting Parties, also be binding on States that have not ratified
it in so far as that provision reflects customary international law,
either “codifying” it or forming a new customary rule
(ibid., § 66). Consequently, Article 11 of the International Law
Commission’s 1991 Draft Articles, as now enshrined in the 2004
Convention, applies under customary international law, even if the
State in question has not ratified that convention, provided it has
not opposed it either (ibid., §§ 66-67).
(b) Application of these principles to the
present case
The
Court first observes that in the Cudak case, which concerned
the dismissal of a member of the local staff of an embassy, it found
that the restrictions on the right of access to a court pursued a
legitimate aim (ibid., § 62). It does not find any reason to
reach a different conclusion in the present case.
It
should therefore now be examined whether the impugned restriction on
the applicant’s right of access to a court was proportionate to
the aim pursued.
As
the Court has pointed out (see paragraph 54 above), Article 11 of the
International Law Commission’s 1991 Draft Articles, as now
enshrined in the 2004 Convention, applies under customary
international law, even if the State in question has not ratified
that convention, provided it has not opposed it either (see Cudak,
cited above, §§ 66-67). For its part, France has not
ratified it but has not opposed it: on the contrary, it signed the
convention on 17 January 2007 and the ratification
procedure is currently pending before the French Parliament (see
paragraph 22 above).
Consequently,
it is possible to affirm that the provisions of the 2004 Convention
apply to the respondent State, under customary international law (see
Cudak, cited above, § 67), and 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.
As
was the case in Cudak with Lithuanian law, this finding is
confirmed by French domestic law. In its case-law, the Court of
Cassation refuses to apply jurisdictional immunity in an absolute
manner, taking the view that it is not applicable in the context of a
dispute concerning an embassy employee who has no particular
responsibility in the exercise of the public diplomatic service (see
paragraph 25 above). That was the position it took, in particular, in
a similar case, not concerning the restructuring of an embassy as in
the present case, but the reorganisation by a State of its diplomatic
mission. It found in that case that whilst the State enjoyed immunity
from jurisdiction as to the assessment of the reasons for a decision
to close a mission, the French courts retained the power to verify
the reality of the closure and to rule on the consequences of any
resulting redundancies (ibid.).
Furthermore,
the Court takes the view that the applicant, who was neither a
diplomatic or consular agent of Kuwait, nor a national of that State,
did not fall within any of the exceptions enumerated in Article 11 of
the 2004 Convention. The Court observes that this Article enshrines
the rule that a State has no jurisdictional immunity in respect of
employment contracts, except in the situations exhaustively
enumerated therein.
The
Court notes in particular that paragraph 2 (a) of Article 11 is
clearly irrelevant to the present case, as the applicant was not
employed to perform any particular duties in the exercise of
governmental authority. As to paragraph 2 (d), which expressly
concerns the dismissal of an employee, it cannot apply in the present
case since it has not been established that there was any risk of
interference with the security interests of the State: the judgment
of the Paris Court of Appeal makes no reference to any claim by the
State of Kuwait that the head of State, the head of Government or the
Minister for Foreign Affairs (the authorities enumerated in that
provision), were of the opinion that such a risk existed.
The
Court observes that the applicant, who was recruited in 1980 by the
Kuwaiti embassy, performed the duties of accountant, then head
accountant, until his dismissal in 2000 on economic grounds. On
17 April 1985, when he was promoted to the post of head
accountant, an official note listed his tasks within the embassy’s
accounts department, without mentioning any other tasks inside or
outside that department (see paragraph 7 above). Similarly, a
certificate of employment dated 19 January 2000 only
indicates his post as head of the accounts department (see paragraph
9 above). Only a statement signed on 3 December 1999 by some twenty
employees indicates that the applicant had also assumed another role,
that of staff representative on an unofficial basis (see paragraph 8
above). Neither the domestic courts nor the Government, which
indicated for their part that they had no choice other than to refer
to the findings of the Court of Appeal, as they had not been a party
to the proceedings, have shown how these duties could objectively
have been linked to the sovereign interests of the State of Kuwait.
Admittedly,
the Court of Appeal’s judgment, enumerating a series of
“additional responsibilities” that the applicant had
supposedly assumed, infers from this that he did not perform mere
acts of administration but had a degree of autonomy which meant that
he carried out his activities in the interest of the public
diplomatic service and thus participated in acts of governmental
authority of the State of Kuwait (see paragraph 15 above).
The
Court notes, however, that the Court of Appeal merely asserted that
such “additional responsibilities” existed, without
justifying its decision by explaining on what basis – documents
or facts brought to its attention – it had reached that
conclusion.
The
Court of Cassation did not give any more extensive reasoning on that
point, which was nevertheless an essential one with regard to the
allegation of a breach of the right of access to a court. It confined
itself to examining the case not according to the ordinary procedure
but in the context of the preliminary admissibility procedure for
appeals on points of law, under Article L. 131-6 of the Code of
Judicial Organisation. Whilst that procedure is compliant per se
with the provisions of Article 6 of the Convention (see Burg and
Others v. France (dec.), no. 34763/02, 28 January
2003, and Salé v. France, no. 39765/04, § 17,
21 March 2006), it nevertheless permits a level of legal
consideration, concerning the merit of the appeal, that is
substantially limited (see Salé, cited above, §
19).
In
addition, the Court notes that the Court of Appeal and the Court of
Cassation also failed to take into consideration the provisions of
Article 11 of the 2004 Convention, in particular the exceptions
enumerated therein that must be strictly interpreted.
In
conclusion, by upholding in the present case an objection based on
State immunity and dismissing the applicant’s claim without
giving relevant and sufficient reasons, and notwithstanding the
applicable provisions of international law, the French courts failed
to preserve a reasonable relationship of proportionality. They 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 82,224.60 euros (EUR) in respect of pecuniary
damage, covering the total amount awarded by the employment tribunal.
He also sought EUR 2,000 euros in respect of non-pecuniary damage.
The
Government argued that the pecuniary damage alleged by the applicant
was hypothetical and bore no direct causal link with the alleged
violation. They took the view that the only possible award would
arise from the non-pecuniary damage claimed, for the sum of EUR
2,000.
The
Court observes that in the present case an award of just satisfaction
can only be based on the fact that the applicant did not have the
benefit of the guarantees of Article 6. Whilst the Court cannot
speculate as to the outcome of the trial had the position been
otherwise, it does not find it unreasonable to regard the applicant
as having incurred a loss of real opportunities (see, among other
authorities, Colozza v. Italy, 12 February 1985, §
38, Series A no. 89, and Cudak, cited above, § 79).
In addition, the applicant has sustained non-pecuniary damage which
the finding of a violation of the Convention in this judgment does
not suffice to remedy. Ruling on an equitable basis, as required by
Article 41, the Court awards the applicant EUR 60,000 for all heads
of damage combined.
B. Costs and expenses
The
applicant indicated that he had been obliged to use the services of a
number of lawyers and a translator in the domestic proceedings in
order to seek redress for the breach of his rights under the
Convention. He claimed EUR 11,984.73 on that basis, together with EUR
4,784 for the proceedings before the Court, representing a total of
EUR 16,768.73, for which he produced all the invoices and fee notes.
The
Government, which merely referred back to their observations before
the Chamber, argued that the applicant had substantiated his claim
only by two invoices for EUR 3,588 and EUR 1,196, the remainder not
being justified and moreover appearing disproportionate. In their
view, any sum that might be awarded to the applicant should not
therefore exceed EUR 4,784.
According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see, among many other authorities, E.B.
v. France [GC], no. 43546/02, § 105, ECHR 2008 ....,
and Micallef v. Malta [GC], no. 17056/06, § 115,
ECHR 2009 ...). In the present case, regard being had to
the above criteria and the documents in its possession, the applicant
having substantiated before the Grand Chamber the full amount
claimed, the Court finds the sum of EUR 16,768 reasonable and awards
it to him.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Dismisses, unanimously, the Government’s
preliminary objection;
Holds, unanimously, that Article 6 § 1 of
the Convention is applicable in the present case;
Holds, unanimously, that there has been a
violation of Article 6 § 1 of the Convention;
Holds, by sixteen votes to one,
(a) that
the respondent State is to pay the applicant, within three months,
the following amounts:
(i) EUR
60,000 (sixty thousand euros), plus any tax that may be chargeable,
in respect of all heads of damage;
(ii) EUR
16,768 (sixteen thousand seven hundred and sixty-eight euros), plus
any tax that may be chargeable to the applicant, in respect of costs
and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses, unanimously, the remainder of the
applicant’s claim for just satisfaction.
Done in English and in French, and notified in
writing on 29 June 2011, pursuant to Rule 77 §§ 2 and 3 of
the Rules of Court.
Vincent Berger Nicolas Bratza
Jurisconsult President
