CASE OF RADUNOVIĆ AND OTHERS v. MONTENEGRO

SECOND SECTION

CASE OF RADUNOVIĆ AND OTHERS v. MONTENEGRO

(Applications nos. 45197/13, 53000/13 and 73404/13)

JUDGMENT

STRASBOURG

25 October 2016

FINAL

25/01/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Radunović and Others v. Montenegro,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Julia Laffranque, President,
Nebojša Vučinić,
Valeriu Griţco,
Ksenija Turković,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 4 October 2016,

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

PROCEDURE

1. The case originated in three applications (nos. 45197/13, 53000/13 and 73404/13) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Montenegrin nationals, Ms Irena Radunović (“the first applicant”), Mr Veselin Nenezić (“the second applicant”) and Mr Ivan Gajević (“the third applicant”), on 25 April 2013, 19 July 2013 and 6 November 2013 respectively.

2. The applicants were represented by Mr D. Marković, a lawyer practising in Podgorica. The Montenegrin Government (“the Government”) were represented by their Agent, Mrs V. Pavličić.

3. The applicants alleged that they had been deprived of their right of access to a court as the domestic courts refused to examine the merits of their civil claims against the USA Embassy in Montenegro relying on the respondent party’s immunity.

4. On 22 January 2015 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1982, 1967 and 1978 respectively and live in Podgorica.

6. The applicants were employees of the USA Embassy (“the Embassy”) in Montenegro. The first applicant worked as a protocol specialist/translator, and the second and third applicants as security guards. All the applicants were local staff.

7. The employment contract between the locally employed staff and the Embassy provided, inter alia, as follows:

“3. Services to be Performed. The employee agrees to perform all the duties set forth in the Position Description in accordance with the terms and conditions set forth herein.

[...]

12. Disputes. All disputes between the employee and the Government arising out of this agreement shall be decided by the Management Officer or, in the absence thereof, the designee of the Management Officer, provided that the employee shall have the right to appeal in writing within thirty (30) days of receipt of notice of any such decision to the Chief of Mission [at the American Embassy Podgorica].”

8. The first applicant’s main duties and responsibilities were related to assisting in organising official receptions, lunches and dinners; questions relevant to protocol and local practices and customs; maintaining a contact database; drafting correspondence in English and Montenegrin; interpreting and translating documents, articles and incoming correspondence; arranging official calls; ensuring press coverage of ceremonial events; organising official visits and serving as a contact person between the front desk and the host country officials.

9. The second and third applicants’ main duties and responsibilities were continuous surveillance of an area around their fixed posts for security hazards; checking ID cards, screening visitors and vehicles, and controlling parking; recognising emergencies and unusual incidents, and acting accordingly. They could occasionally be required to work at other locations and for special functions such as VIP visits, receptions and dinners at the Principal Officer’s Residence.

10. Between 14 February 2009 and 28 June 2012 the applicants were informed by the Embassy that they were dismissed.

11. On 26 July 2010 the Court of First Instance (Osnovni sud) in Podgorica, apparently upon the third applicant’s claim to that effect, quashed the decision on his dismissal and ordered his reinstatement. It would appear that on an unspecified date thereafter this decision became final.

12. Between 22 November 2010 and 26 July 2012 the applicants instituted separate civil proceedings against the Embassy. All the applicants claimed compensation: the first applicant sought compensation for non-pecuniary damage caused by the wrongful dismissal, and the second and third applicants claimed compensation for loss of earnings. The first and second applicants, in addition, sought reinstatement.

13. On 26 May 2011 the Court of First Instance in Podgorica declared that it lacked competence to deal with the first applicant’s claim and rejected it (tužba [se] odbacuje), which decision was upheld by the High Court on 21 June 2011. On 4 October 2011 the Supreme Court quashed these decisions. Relying on section 29 of the Civil Procedure Act, section 2 (1) of the Labour Act and section 46 of the Resolution of Conflict of Laws and Regulations of other States Act (see paragraphs 30, 33 and 35 below), the Supreme Court considered that the Montenegrin courts had jurisdiction to examine the merits of the first applicant’s claim.

14. Between 8 September 2011 and 24 September 2012 the Court of First Instance in Podgorica declared that it lacked competence to deal with the applicants’ claims (in a re-trial in respect of the first applicant) and rejected them. In substance, the court considered that the respondent State had immunity provided for by international law, and therefore could not be subjected to the jurisdiction of another State’s court. In rejecting the first applicant’s claim the court further held that granting immunity to the respondent State could not be considered a restriction on access to court, as provided in Article 6 of the Convention. While the court acknowledged that in international and comparative law there were restrictions on State immunity in respect of employment-related disputes, it also held that recruitment (pitanja u vezi sa zapošljavanjem) in a foreign diplomatic mission or an embassy was an issue which could be “very sensitive or of a confidential nature” and might relate to the diplomatic and organisational policy of a foreign State. In ruling upon the second and third applicants’ claims, the Court of First Instance relied also on the Vienna Convention on Diplomatic Relations, which provided that the function of Embassies was to represent foreign States, and held that therefore the jurisdiction of the domestic courts was excluded. The court also relied on Article 22 of the Vienna Convention, which provided for the inviolability of the premises of Embassies.

15. On various dates thereafter the applicants appealed. The first applicant submitted, inter alia, that by examining the merits of her claim the courts would not interfere with the other party’s sovereignty. She also submitted that the Court of First Instance had to examine the claim on the merits pursuant to the decision of the Supreme Court of 4 October 2011 and relied on section 415 of the Civil Procedure Act (see paragraph 32 below).

16. Between 20 November 2011 and 6 December 2012 the High Court upheld the first-instance decisions, in substance endorsing their reasoning. The High Court further held, upon the first applicant’s appeal, that a violation of sections 367 (1) and 415 of the Civil Procedure Code (see paragraphs 31 and 32 below) by the first-instance court did not render the first-instance decision unlawful, in particular as it was undisputed that the respondent party had its seat in another State and only a diplomatic representation in Montenegro. In ruling upon the second applicant’s claim it held that the jurisdiction of the domestic courts was not explicitly provided for either by the law or an international agreement.

17. Between 1 November 2012 and 10 May 2013, ruling upon the applicants’ appeals on points of law, the Supreme Court upheld the previous decisions on the grounds that the respondent party was a foreign State with its own legal personality and the domestic courts had no competence to rule upon the applicants’ claims. The court relied on section 29 of the Civil Procedure Act, section 46 of the Resolution of Conflict of Laws and Regulations of other States Act, and Article 3 of the Vienna Convention on Diplomatic Relations. In ruling upon the third applicant’s appeal on points of law the Supreme Court also held, inter alia, that granting immunity to a foreign State in civil proceedings pursued a legitimate aim of complying with international law and encouraging good diplomatic relations between States, and that it could not be considered as a restriction on access to court in violation of Article 6 of the Convention.

18. Between 10 January 2013 and 12 July 2013 the applicants lodged separate constitutional appeals. On 18 November 2015 the Constitutional Court dismissed the first and third applicants’ constitutional appeals, while the second applicant’s constitutional appeal would appear to be still pending. The Constitutional Court held that there had been no violation of Article 6 of the Convention as the decisions had been issued by tribunals established by law, which had acted within their competence, and which had given clear reasons for their decisions. There was therefore no arbitrariness in the courts’ rulings. In ruling upon the third applicant’s constitutional appeal the Constitutional Court in addition held that pursuant to the case-law of the Court and the Constitutional Court “it [was] not the task of these courts to examine the conclusions of the regular courts in respect of the substantive law application, except in cases where [...] procedural rights were violated ([such as ...], the right of access to court) [...]”. However, it did not go into any analysis about the third applicant’s right of access to court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Constitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 01⁄07)

19. Article 32 provides for the right to a fair trial.

20. Article 149 provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

21. The Constitution entered into force on 22 October 2007.

B. Montenegro Constitutional Court Act 2008 (Zakon o Ustavnom sudu Crne Gore, published in the OGM no. 64⁄08)

22. Section 48 provided that a constitutional appeal might be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies had been exhausted.

23. Sections 49-59 provided additional details as regards the processing of constitutional appeals. In particular, section 56 provided that when the Constitutional Court found a violation of a human right or freedom, it would quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which had rendered the quashed decision.

24. This Act entered into force in November 2008.

C. Montenegro Constitutional Court Act 2015 (Zakon o Ustavnom sudu Crne Gore, published in the OGM no. 11⁄15)

25. Section 68 provides that a constitutional appeal can be lodged by a physical person or legal entity, organisation, a community (naselje), a group of persons and other forms of organisation, which do not have a status of legal entity, if they consider that their human right or freedom guaranteed by the Constitution was violated by an individual decision, action or omission of a State body, an administrative body, a local self-government body or a legal person exercising public authority, after all other effective legal remedies have been exhausted.

26. Sections 69-78 provide further details as regards the processing of constitutional appeals. In particular, section 69 provides, inter alia, that a constitutional appeal can be lodged within 60 days as of the day when an impugned action violating a human right or freedom ceased. Section 76 provides that if in the course of proceedings before the Constitutional Court an impugned decision ceased to be in force, and the Constitutional Court finds a violation of a human right or freedom, it will accept a constitutional appeal and award the appellant just satisfaction.

27. Section 38 provides that the Constitutional Court must decide within 18 months as of the day when the proceedings before that court were initiated.

28. This Act entered into force on 20 March 2015 thereby repealing the Constitutional Court Act 2008.

D. The Civil Procedure Act 2004 (Zakon o parničnom postupku; published in the Official Gazette of the Republic of Montenegro –OG RM – nos. 22⁄04, 28⁄05, 76⁄06 and in the OGM no 73⁄10)

29. Section 28 provides that the international law rules apply with regard to the competence of the Montenegrin courts to rule in disputes involving foreign citizens enjoying immunity, foreign States and international organisations.

30. Section 29 further provides that a Montenegrin court shall be competent to rule in a dispute with an international element when its competence in such a case is explicitly provided for by a piece of legislation or an international treaty or, in the absence of such a provision, by the provisions on territorial competence of the domestic court.

31. Section 367 sets out details as to what constitutes a relevant breach of civil procedure (bitna povreda odredaba parničnog postupka).

32. Section 415 provides that the court to which the case has been remitted is bound by a legal opinion of the Supreme Court contained in its decision issued upon an appeal on points of law by which the lower court’s judgment was quashed.

E. The Labour Act (Zakon o radu; published in the OGM nos. 49⁄08, 26⁄09, 88⁄09, 26⁄10, 59⁄11, 66⁄12, and 31⁄14)

33. Section 2 (1) provides, inter alia, that the Labour Act is applicable to employees working for employers operating in the territory of Montenegro, unless otherwise stipulated by the law (ako zakonom nije drukčije određeno).

F. Resolution of Conflict of Laws and Regulations of other States Act (Zakon o rešavanju sukoba zakona sa propisima drugih zamalja; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 43⁄82 and 72⁄82, and in the Official Gazette of Federal Republic of Yugoslavia no. 46⁄96)

34. Section 20 (19) provides that if the relevant law was not selected and if the circumstances of the case do not imply otherwise, the relevant law for pecuniary claims arising from employment contracts shall be the law of the State in which the work is or was performed.

35. Section 46 provides, inter alia, that the domestic court is competent to rule only if the respondent party has residence, that is its seat, in Montenegro.

36. Section 47 provides that the competence of domestic courts exists when it is explicitly provided so by this or another domestic piece of legislation.

37. Section 55 provides that the domestic court shall be competent in disputes against, inter alia, legal entities which have their seat abroad, in respect of obligations which arose or are to be honoured in the domestic territory if that legal entity has its representation (predstavništvo ili zastupništvo) in that territory.

G. The Courts Act (Zakon o sudovima; published in the OG RM nos. 05⁄02 and 49⁄04, and in the OGM nos. 22⁄08, 39⁄11, 46⁄13, 48⁄13 and 32⁄14)

38. Section 16 (1) (3) provides that the Court of First Instance is competent to rule in employment-related disputes in the first instance.

H. The Obligations Act 2008 (Zakon o obligacionim odnosima; published in the OGM nos. 47⁄08 and 04⁄11)

39. Sections 192-199, 205, and 206-212, inter alia, set out details as regards compensation for pecuniary and non-pecuniary damage.

I. Relevant domestic case law

40. On 17 January 2012 the Court of First Instance in Podgorica declared it lacked competence to rule upon a civil claim of X against the Embassy of Poland, by which X had sought that a decision on his dismissal be revoked. On 20 November 2012 the decision of the first-instance court was upheld by the High Court. The courts relied on section 46 of the Resolution of Conflict of Laws and Regulations of other States Act and section 29 of the Civil Procedure Act.

III. RELEVANT INTERNATIONAL LAW

41. 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 (acta jure imperii) and acts of commerce or administration (acta jure gestionis).

42. 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.”

43. Neither Montenegro nor the USA has ratified the United Nations Convention on Jurisdictional Immunities of States and their Property of 2 December 2004. Neither the State Union of Serbia and Montenegro, at the time, nor the USA, opposed it[1].

44. The Draft Articles on Jurisdictional Immunities of States and their Property, that were used as the basis for the text adopted in 2004, were adopted by the International Law Commission at its forty-third session in 1991, and submitted to the General Assembly at that session. Article 11 thereof 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.”

45. 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 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. In other words, this subparagraph does not prevent an employee from bringing action against the employer State in the State of the forum to seek redress for damage arising from recruitment, renewal of employment or reinstatement of an individual.

[...]

Finally, paragraph 2 (e) provides for the freedom of contract, including the choice of law and the possibility of a chosen forum or forum prorogatum. This freedom is not unlimited. It is subject to considerations of public policy [...] whereby exclusive jurisdiction is reserved of the courts of the State of the forum by reason of the subject-matter of the proceeding.”

46. For a more comprehensive overview see Cudak v. Lithuania ([GC], no. 15869/02, §§ 25-33, ECHR 2010).

47. Article 8 of the International Labour Organisation Convention on Termination of Employment (No. 158) provides, inter alia, that a worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.

48. Article 3 of the Vienna Convention on Diplomatic Relations sets out details as regards the functions of diplomatic missions.

THE LAW

I. JOINDER OF THE APPLICATIONS

49. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

50. The applicants complained, under Article 6 of the Convention and Article 1 of Protocol No. 12 thereto, that the domestic courts’ refusal to examine their civil claims on the merits deprived them of their right of access to court. Being the master of the characterisation to be given in law to the facts of any case before it (see Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 (extracts)) the Court considers that the applicants’ complaint falls to be examined under Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”.

51. The Government contested that argument.

A. Admissibility

52. The Government submitted that the applicants had failed to exhaust all domestic remedies. In particular, a constitutional appeal was an effective domestic remedy and at the time when the applicants lodged their applications their constitutional appeals were still pending.

53. The applicants referred to their submissions made in the applications, notably that a constitutional appeal was not an effective domestic remedy.

54. The Court has already held that a constitutional appeal in Montenegro could in principle be considered an effective domestic remedy, but as of 20 March 2015 (see Siništaj and Others v. Montenegro, nos. 1451/10, 7260/10 and 7382/10, § 123, 24 November 2015). The applicants lodged their applications in April, July and November 2013, that is long before the constitutional appeal became an effective domestic remedy in the respondent State (see Siništaj and Others, cited above, § 124).

55. The Court also notes that all the applicants did make use of a constitutional appeal and the Constitutional Court ruled in respect of the first and third applicants’ appeals, thus exhausting the said remedy in any event (see Karoussiotis v. Portugal, no. 23205/08, § 57, ECHR 2011 (extracts)). While the Constitutional Court appears not to have ruled yet in respect of the second applicant’s constitutional appeal, the Court considers that there is nothing in the case file which would indicate that it would rule any differently in that regard given its decisions in respect of the first and third applicants (see, mutatis mutandis, Lakićević and Others v. Montenegro and Serbia, nos. 27458/06, 37205/06, 37207/06 and 33604/07, § 51, 13 December 2011; and Siništaj and Others, cited above, § 170).

56. In view of the above, the Court considers that the Government’s objection of non-exhaustion must be dismissed.

57. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

58. The applicants reaffirmed their complaint.

59. The Government submitted that the applicants’ complaints were of a fourth instance nature. They also maintained that the domestic courts ruled consistently in disputes of this kind and submitted a decision of the High Court of 20 November 2012 (see paragraph 40 above). In any event, it was not the Court’s role to examine the domestic courts’ interpretation of domestic law, and certain divergences in domestic jurisprudence were acceptable. They referred in this regard to Vinčić and Others v. Serbia (nos. 44698/06 et al., 1 December 2009).

60. The Government further maintained that the applicants’ employment contracts did not provide for the jurisdiction of national courts in case of a dispute. Pursuant to the Vienna Convention the Embassy had its seat in a foreign State, which had its own legal personality. They referred to section 29 of the Civil Procedure Act and section 46 of the Resolution of Conflict of Laws and Regulations of other States Act (see paragraphs 30 and 35 above). They maintained that granting immunity to a foreign State in civil proceedings pursued a legitimate aim of complying with international law and encouraging good diplomatic relations between States, and could not be considered as a restriction on access to a court. They concluded that there had been no violation of Article 6 of the Convention.

2. The relevant principles

61. 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, one of the fundamental aspects of which is the principle of legal certainty, 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).

62. 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, for example, Cudak, cited above, § 55).

63. 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 Fogarty v. the United Kingdom [GC], no. 37112/97, § 35, ECHR 2001‑XI (extracts)). 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 Cudak, cited above, § 56; Sabeh El Leil v. France [GC], no. 34869/05, § 48, 29 June 2011).

64. 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).

65. 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 of Judgments and Decisions 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).

66. 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.

67. 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, § 60, and Al-Adsani, § 54, both cited above). 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 (see Sabeh El Leil, cited above, § 52).

68. 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 (see Sabeh El Leil, cited above, § 53).

69. 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 (see Cudak, cited above, § 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 (see Cudak, §§ 66-67, and Sabeh El Leil, § 54, both cited above).

3. Application to the present case

70. The Court first observes that in the Cudak and Sabeh El Leil cases, both of which concerned the dismissal of members of the local staff of embassies, it found that the restrictions on the right of access to a court pursued a legitimate aim (see Cudak, § 62, and Sabeh El Leil, § 55, both cited above). It does not find any reason to reach a different conclusion in the present case.

71. 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.

72. The Court notes that the domestic courts clearly refused to apply jurisdictional immunity in an absolute manner, since they ruled in favour of the third applicant and ordered his reinstatement, which decision became final (see paragraph 11 above). The Supreme Court also initially took the view that the courts should rule on the merits of the applicants’ civil claims (see paragraph 13 above).

73. As the Court has pointed out (see paragraph 69 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, §§ 66-67, and Sabeh El Leil, § 57, both cited above). For its part, Montenegro has not ratified it, and the State Union of Serbia and Montenegro did not oppose it (see paragraph 43 above). Consequently, it is possible to affirm that the provisions of the 2004 Convention apply to the respondent State, under customary international law, 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 (see Sabeh El Leil, cited above, § 58).

74. The Court observes that Article 11 of the 2004 Convention enshrines the rule that a State has no jurisdictional immunity in respect of employment contracts, except in the situations exhaustively enumerated therein (see Sabeh El Leil, cited above, § 60).

75. It is noted in this regard that paragraph 2 (a), (b) and (e) of Article 11 was clearly irrelevant in the present case, as the applicants were not employed to perform any particular duties in the exercise of governmental authority, they were neither diplomatic or consular agents of the USA, nor nationals of that State.

76. As to paragraph 2 (c), the Court observes that the first and second applicants’ claims concerned both reinstatement and compensation. Notwithstanding the earlier domestic courts’ decision in respect of the third applicant’s reinstatement claim (see paragraph 11 above), the Court recalls that reinstatement falls under an exception which allows for an application of the rule of immunity. However, as noted above, it does not prevent an employee from bringing action against the employer State in the State of the forum to seek redress for damage arising from wrongful dismissal (see paragraph 45 above). Therefore, the applicants’ claims concerning compensation did not fall under the exception provided in paragraph 2 (c).

77. Paragraph 2 (d), which expressly concerns the dismissal of an employee, was not applicable in the present case since neither the domestic courts nor the Government have shown how the applicants’ duties could objectively have been linked to the security interests of the USA (see Sabeh El Leil, cited above, §§ 61-62, and Cudak, cited above, § 72).

78. Finally, the Court considers that paragraph 2 (f) was not applicable either given that the applicants’ employment contracts did not specify which court would have jurisdiction in respect of employment-related disputes (see paragraph 7 above).

79. In view of the above, the Court considers that the applicants’ claims relating to compensation did not fall within any of the exceptions provided for in Article 11 paragraph 2 of the 2004 Convention and that therefore, pursuant to paragraph 1 thereof, State immunity could not be relied on in the domestic proceedings.

80. When ruling upon the first applicant’s claim the Court of First Instance considered only in general that working for the embassies might be “sensitive or of a confidential nature” without going into any examination whatsoever of whether the first applicant’s job had been indeed sensitive or of a confidential nature (see, mutatis mutandis, Sabeh El Leil, cited above, §§ 63-64). While that court acknowledged that there were generally restrictions on State immunity in employment-related disputes, neither that nor any other domestic court ruling upon the applicants’ claims took into consideration the provisions of Article 11 of the 2004 Convention, in particular the exceptions enumerated therein that must be strictly interpreted (see Sabeh El Leil, cited above, § 66).

81. In view of the above, the Court considers that by rejecting the applicants’ claim for compensation relying on State immunity without giving relevant and sufficient reasons, and notwithstanding the applicable provisions of international law, as well as sections 28 of the Civil Procedure Act and sections 47 and 55 of Resolution of Conflict of Laws and Regulations of other States Act (see paragraphs 29 and 36-37 above), the Montenegrin courts failed to preserve a reasonable relationship of proportionality. They thus impaired the very essence of the applicants’ right of access to a court.

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

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

83. 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

84. The first applicant claimed 70,370 euros (EUR), the second applicant claimed EUR 65,336.05, and the third applicant EUR 172,715.46 in respect of pecuniary damage, for loss of earnings due to their dismissal. The first applicant also claimed EUR 15,000 in respect of non-pecuniary damage, and the second and third applicants claimed EUR 10,000 each in this regard.

85. The Government contested these claims us unfounded.

86. The Court observes that in the present case an award of just satisfaction can only be based on the fact that the applicants did not have the benefit of the guarantees of Article 6. Whilst the Court cannot speculate as to the outcome of the proceedings had the position been otherwise, it does not find it unreasonable to regard the applicants as having incurred a loss of real opportunities (see, among other authorities, Colozza v. Italy, 12 February 1985, § 38, Series A no. 89; Cudak, cited above, § 79; and Sabeh El Leil, cited above, § 72). In addition, the applicants have sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. Nevertheless, it is noted that the first applicant made no claim for pecuniary damages before the domestic courts (see paragraph 12 above) and thus cannot be said to have incurred a loss of real opportunities. Therefore, the Court rejects the first applicant’s claim in that regard and, ruling on an equitable basis, as required by Article 41, awards her EUR 3,600 for non-pecuniary damage. It also awards the second applicant EUR 19,000, and the third applicant EUR 22,000 for all heads of damage combined.

B. Costs and expenses

87. The first applicant claimed EUR 6,051 for costs and expenses incurred before the domestic courts and this Court, and the second and third applicants claimed EUR 3,572.50 each in this regard.

88. The Government contested these claims us unfounded.

89. According to the Court’s case-law, an applicant is entitled to the reimbursement of 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. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds the sums claimed reasonable and awards each applicant the sum claimed in its entirety.

C. Default interest

90. The Court considers it appropriate that the default interest rate 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, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the first applicant in respect of non-pecuniary damage; EUR 19,000 (nineteen thousand euros), plus any tax that may be chargeable, to the second applicant in respect of both pecuniary and non-pecuniary damage; and EUR 22,000 (twenty-two thousand euros), plus any tax that may be chargeable, to the third applicant in respect of both pecuniary and non-pecuniary damage;

(ii) EUR 6,051 (six thousand and fifty one euros), plus any tax that may be chargeable, to the first applicant, and EUR 3,572.50 (three thousand five hundred and seventy two euros and fifty cents), plus any tax that may be chargeable, to the second and third applicants each, 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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 25 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithJulia Laffranque
RegistrarPresident

[1] See , page 8

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