European Court of Human Rights

THIRD SECTION

CASE OF NURAJ v. ALBANIA

(Application no. 35703/17)

JUDGMENT
 

STRASBOURG

10 October 2023

This judgment is final but it may be subject to editorial revision.

In the case of Nuraj v. Albania,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Georgios A. Serghides, President,
 Darian Pavli,
 Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 35703/17) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 13 May 2017 by an Albanian national, Ms Hajrie Nuraj, born in 1960 and living in Tirana ("the applicant") who was represented by Mr S. Puto, a lawyer practising in Tirana;

the decision to give notice of the complaint under Article 6 § 1 of the Convention concerning the applicant's right of access to court to the Albanian Government ("the Government"), represented by their Agent, Ms B. Lilo, and subsequently by Mr O. Moçka, General State Advocate, and to declare inadmissible the remainder of the application;

the parties' observations;

Having deliberated in private on 19 September 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged breach of the applicant's right of access to court under Article 6 § 1 of the Convention on account of the domestic courts' refusal to examine her employment claim against a foreign embassy on the grounds of state immunity.

The facts

2.  Between 2012 and 2014 the applicant was employed as a secretary at the Embassy of Qatar in Tirana. Under the employment contract the applicant's position was referred to as "secretary" and "administrative officer". The contract did not include a specific job description. In practice, she also acted as a translator for the embassy.

3.  The contract provided that, should any dispute arise between the parties, it:

"shall be referred to the competent judicial authority without prejudice to the privileges and diplomatic immunities of the mission."

4.  In November 2014 the embassy terminated her employment on grounds of breach of confidentiality and discipline. The applicant brought a claim for unlawful termination before the Albanian courts.

1. Domestic proceedings
   1. The first set

5.  On 13 February 2015 the Tirana District Court gave an interlocutory decision rejecting the embassy's inadmissibility plea based on State immunity and declaring that it had jurisdiction to hear the claim. The court noted that the dispute did not concern a public action ("acta iure imperii") but rather a private action ("iure acta gestionis") which was not connected to the foreign State's sovereignty. The court added that to decline jurisdiction would amount to a violation of the applicant's right of access to court under Article 6 § 1 of the Convention.

6.  The Qatari Embassy lodged an appeal with the Supreme Court arguing, essentially, that under the 1961 Vienna Convention on Diplomatic Relations ("Vienna Convention") their immunity should have been upheld. They added that the applicant's duties were related to the mission of the embassy. They also stated that the employment contract was silent on which judicial authority was competent to hear the claim; therefore the applicant was under an obligation to negotiate with the embassy as to whether the claim would be reviewed by the Albanian or the Qatari courts.

7.  On 8 April 2015 the Supreme Court overturned the lower court's decision and ruled that the action was inadmissible on account of State immunity. The court found that in the employment contract the parties had not determined the competent court to hear any dispute. Furthermore, the Supreme Court relied on domestic law and the Vienna Convention to conclude that there was no reason to rule out the foreign State's immunity.

8.  Following a constitutional appeal by the applicant, on 15 March 2016 the Constitutional Court quashed the Supreme Court's decision and returned the case for retrial before that court. The Constitutional Court found that the Supreme Court had failed to take into account the evolution of the case-law of the European Court of Human Rights which pointed to a limitation of State immunity in connection with employment disputes. In the same vein, the Supreme Court had failed to ascertain whether the specific duties of the applicant within the embassy involved the exercise of merely administrative duties or contributed to the fulfilment of sovereign objectives of the represented State. The Constitutional Court therefore instructed the Supreme Court to clarify these matters and to determine whether any of the exceptions provided for under Article 11 § 2 of the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property ("2004 UN Convention") were applicable to the case.

9.  Lastly, the Constitutional Court instructed the Supreme Court to address the foreign State's plea that the applicant had had access to "a number of confidential documents" which she had translated for the embassy.

2. The second set

10.  In her subsequent submissions before the Supreme Court the applicant stated that she had been only a secretary rather than consular staff and that all she had translated for the embassy were articles from the Albanian press.

11.  On 29 June 2016 the Supreme Court acknowledged that there had been a general trend in limiting States' immunity in connection to employment disputes as illustrated by the Court's judgments in Cudak v. Lithuania ([GC], no. 15869/02, §§ 54-59, ECHR 2010) and Sabeh El Leil v. France ([GC], no. 34869/05, §§ 46-54, 29 June 2011). However, relying on Article 39 of the Code of Civil Procedure ("CCP") and Articles 31 § 1 and Article 32 of the Vienna Convention (see paragraphs 15-16 below), it found that the defendant had not waived their immunity and ruled once again that the action was inadmissible. As regards the 2004 UN Convention, which it considered to be applicable to Albania as customary international law, it found that:

"19. [...] the present case falls under the second paragraph of article 11 [of the 2004 UN Convention] since [...] the employment contract under review is part of the sphere of actions connected directly to the fulfilment of the diplomatic mission or function under the Vienna Convention but also within the meaning of Article 11/2/a/d [sic] of the United Nations Convention on Jurisdictional Immunities of States and their Property (exceptions).

20. [...] since the plaintiff was employed as a translator and secretary to the Ambassador of the State of Qatar, her activity was connected to the sovereignty of the foreign state. The tasks of the plaintiff were connected directly to the activity of the diplomatic representation of the foreign State, therefore the sovereign immunity of the foreign State justifies the limitation of the plaintiff's right of access to court.

21. The Civil Bench of the Supreme Court takes also into account the specific tasks performed by the plaintiff. By reference to the parties' submissions, it emerges that the plaintiff had access to certain documents which she translated and forwarded directly to the representatives of the state of Qatar, that is, she had access to confidential sensitive materials that were directly related to sovereign interests of the state of Qatar. On the other hand, the plaintiff failed to submit before the court that the materials translated by her were not confidential.

...

22. Accordingly, the duties of the plaintiff related to matters of confidentiality... The plaintiff's activity cannot be classified as simple administrative activity."

12.  Moreover, by reference to the employment contract (see paragraph 3 above), the court found that:

"the defendant never intended to waive their privileges and immunity ... From the interpretation of this contractual provision, it transpires that the parties never intended to submit the resolution of their disputes to Albanian courts, since (i) the dispute arises from labour relations; (ii) the defendant is an entity enjoying diplomatic immunity ...; (iii) the defendant has not waived their immunity so that the dispute could be heard by the Albanian courts."

13.  On 21 December 2016 the Constitutional Court, by a majority of five to three, dismissed the applicant's constitutional appeal as inadmissible, finding that the Supreme Court had duly reasoned its decision.

14.  Two judges appended a joint dissenting opinion stating that the court should have analysed the case under the "access to court" angle rather than the "lack of reasons". They also maintained that the Supreme Court had not taken into account sufficiently the Court's case-law which went in the direction of limiting state immunity. They concluded that in view of the prima facie issues disclosed, the case should have been declared admissible.

2. RELEVANT domestic law

15.  Article 39 of the CCP reads:

Article 39

"Members of consular and diplomatic missions residing in the Republic of Albania are not subject to the jurisdiction of Albanian courts unless:

a) they voluntarily agree [to that jurisdiction];

b) the conditions and terms provided by the Vienna Convention on Diplomatic Relations [for the lifting of immunity] are satisfied."

3. RELEVANT INTERNATIONAL LAW
   1. The 1961 Vienna Convention on Diplomatic Relations

16.  Article 31 § 1 and Article 32 of the Convention, in force in Albania as of 8 February 1988, read:

Article 31

"1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction ...

...

Article 32

1.The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State.

..."

2. The 2004 United Nations Convention on Jurisdictional Immunities of States and their Property

17.  In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property. It was opened for signature on 17 January 2005 and has not yet entered into force. Article 11 of the Convention reads as follows:

Article 11 - Contracts of employment

"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;

...

(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;

..."

THE COURT'S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

18.  Relying on Article 6 § 1 of the Convention, the applicant alleged that she had been deprived of her right of access to a court on account of the jurisdictional immunity invoked by her employer and upheld by the domestic courts.

1. Admissibility

19.  Under Article 1 of the Convention, the Government contended that the applicant had not been "within the jurisdiction" of Albania because she had agreed that disputes with her employer would be resolved by the Qatari courts, thereby excluding the jurisdiction of Albanian courts and, consequently, that of the Court. The applicant contested that assertion.

20.  Although the Supreme Court concluded that it lacked jurisdiction to hear the merits of the applicant's claim, in reaching that conclusion it exercised its power to determine the question brought before it by the applicant. Subsequently, the Constitutional Court examined and rejected the applicant's constitutional appeal. It follows that, in so far as the compatibility of the domestic decisions with Article 6 § 1 of the Convention is concerned, the applicant was "within the jurisdiction" of Albania for the purposes of Article 1 of the Convention (compare with Naku v. Lithuania and Sweden, no. 26126/07, §§ 78-79 and 95, 8 November 2016).

21.  In so far as the Government's argument may also be understood as a plea that the applicant had waived her right under Article 6 § 1 of the Convention to benefit from access to the Albanian courts, the Court considers that this objection must be joined to the merits of the complaint.

22.  This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits
   1. General principles

23.  The relevant general principles of the right of access to a court secured by Article 6 § 1 of the Convention have been set out in Cudak v. Lithuania ([GC], no. 15869/02, §§ 54-59, ECHR 2010) and Sabeh El Leil v. France ([GC], no. 34869/05, §§ 46-54, 29 June 2011).

2. The Court's assessment

(a)   Whether the applicant waived her right

24.  The Court notes that the defendant submitted to the domestic courts that the parties had not agreed on which jurisdiction would examine the dispute and this matter required further negotiation (see paragraph 6 above). This argument puts into doubt the Government's suggestion that the applicant had waived her right of access to Albanian courts.

25.  Admittedly, the Supreme Court stated that the parties had not intended to submit their dispute to Albanian courts (see paragraph 12 above). However, it does not appear that this conclusion was based on an analysis of whether the applicant had freely and unequivocally chosen to waive her right to a court (see, mutatis mutandis, Suda v. the Czech Republic, no. 1643/06, § 48, 28 October 2010). That conclusion was rather based on the Supreme Court's previous finding that the defendant had not waived their immunity. In this connection the Court observes that the main point of dispute before domestic courts was whether the defendant enjoyed immunity, not whether the applicant had waived her right of access to the Albanian courts. Indeed, throughout the proceedings the domestic courts proceeded on the assumption that the applicant's right to a court was at stake. They relied on the Court's case-law under Article 6 § 1 of the Convention and endeavoured to balance the applicant's rights with the defendant's right to immunity.

26.  In view of the foregoing, the Court is unable to accept the Government's argument that the applicant had waived her right to a court under Article 6 § 1 of the Convention.

(b)   Whether there was a breach of the applicant's right of access to court

27.  The grant of immunity to a State pursues a legitimate aim (see Cudak, cited above, § 60). Therefore, the crux of the question before the Court is whether the impugned restriction on the applicant's right of access to a court was proportionate.

28.  The Court observes that Albania has not ratified the 2004 UN Convention but it did not vote against its adoption either, and the domestic courts relied expressly on it (see paragraphs 8 and 11 above). Therefore, the 2004 UN Convention applies to Albania under customary international law (see Cudak, cited above, § 66-67).

29.  Article 11 of the 2004 UN Convention enshrines the rule that a State has no jurisdictional immunity in respect of employment contracts, except in the situations exhaustively enumerated therein. The applicant maintained that her case did not fall under any of the said exceptions, whereas domestic courts concluded to the contrary.

30.  As a preliminary remark, the Court notes that the Supreme Court did not clarify which specific sub-paragraph of Article 11 § 2 of the 2004 UN Convention applied to the applicant (see paragraph 11 above). The Supreme Court's judgment referred to "article 11/2/a/d". However, as the provision in question does not include a sub-paragraph "a/d", this reference must be taken as referring to two different sub-paragraphs, namely (a) and (d) of the provision in question. Be that as it may, it is difficult to accept that the applicant's case fell under any of these paragraphs.

31.  Firstly, there was no indication that the applicant had been recruited "to perform particular functions in the exercise of governmental authority" under Article 11 § 2 (a) of the 2004 UN Convention. Indeed the applicant's employment contract did not even include a detailed job description, which is hardly compatible with a position exercising governmental authority. She was recruited to act as "administrative officer" and/or "secretary" to the Ambassador which, in absence of any further explanation, cannot be equated to exercising the governmental authority of the State in question.

32.  As regards her translation activity, the Court notes once again that this duty was not mentioned at all in her employment contract, which suggests that this was a secondary activity to her secretarial duties. Moreover, in respect to the Supreme Court's finding that the applicant had not submitted before it that the materials translated by her were not confidential (see paragraph 11 above), the Court refers to the applicant's memorandum before that court (see paragraph 10 above) and notes that she submitted that she had only translated press articles, which by their nature are not confidential. It is not clear for the Court what elements led the Supreme Court to conclude that the applicant had had access to confidential or sensitive information. In any event, having a certain access to sensitive information which may be the case for a person acting as a secretary to the ambassador - cannot be equated with performing particular functions in the exercise of governmental authority" within the meaning of Article 11 § 2 (a) of the 2004 UN Convention.

33.  Turning to sub-paragraph (d) of Article 11 § 2 of the 2004 UN Convention, there is no reference in the Supreme Court's judgment to any determination made by the relevant "head of State, the head of Government or the Minister for Foreign Affairs" or to any potential undermining of the Qatari security interest. The mere allegation that the applicant could have had access to certain documents or could have been privy to confidential materials in the course of her duties is not sufficient to lead to a different conclusion (see Cudak, cited above, § 72). It follows that it has not been shown that that sub-paragraph was applicable to the case either.

34.  The Court has reached a similar conclusion in comparable cases where an applicant was employed as culture, information and press officer (see Naku, cited above, §§ 15 and 95 ), protocol specialist, translator and security guard (Radunović and Others v. Montenegro, nos. 45197/13 and 2 others, §§ 6 and 79, 25 October 2016), accountant (see Sabeh El Leil, cited above, §§ 7 and 67) and switchboard operator (Cudak, cited above, §§ 10 and 74).

35.  As rightly observed by the Constitutional Court in its first judgment (see paragraph 8 above), it was precisely the scope of the applicant's duties that should have been examined in substance by the domestic courts to answer the question of whether any of the sub-paragraphs of Article 11 § 2 of the 2004 UN Convention were applicable to the case. That fact-specific examination was not forthcoming and instead the domestic courts relied mainly on the fact that the applicant was employed in a foreign embassy and had had access to undefined supposedly sensitive materials. Although this issue was pointed out by the dissenting judges, it was not remedied through the second decision of the Constitutional Court either (see paragraphs 13-14 above).

36.  Accordingly, there has been a violation of Article 6 § 1 of the Convention.

ARTICLE 41 OF THE CONVENTION

37.  The applicant claimed 40,200 and 70,000 euros (EUR) in respect of pecuniary and non-pecuniary damage, respectively. She also claimed EUR 3,640 in respect of costs and expenses before the Court supported by a pro-forma itemised invoice and lodged no claim under that head for domestic proceedings.

38.  The Government considered the amounts excessive and unsupported by officially approved invoices.

39.  The Court has found a violation of the applicant's right of access to court under Article 6 § 1 of the Convention and made no finding in connection with the lawfulness of her dismissal. In this regard, it is open to the applicant to request a reopening of domestic proceedings. There being no causal link between the violation found by the Court and the pecuniary damage alleged, the Court rejects this claim.

40.  As regards non-pecuniary damage, the Court awards EUR 3,600 under this head, plus any tax that may be chargeable to the applicant.

41.  Turning to costs and expenses, as it has already done in the past (see Hysa v. Albania, no. 52048/16, § 93, 21 February 2023, with further references), the Court rejects the Government's argument that claims for costs and expenses must be supported by officially approved invoices. Regard being had to the justifications submitted by the applicant, the Court considers it reasonable to award to the applicant the claimed amount of EUR 3,640 covering costs and expenses before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Dismisses the Government's preliminary objection of lack of jurisdiction;

2. Joins to the merits the objection as to the alleged waiver of the applicant's right to a court under Article 6 § 1 of the Convention, and rejects it;
3. Declares the application admissible;
4. Holds that there has been a violation of Article 6 § 1 of the Convention;
5. Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,640 (three thousand six hundred and forty 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;

6. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 10 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Georgios A. Serghides
 Deputy Registrar President