Naku v. Lithuania and Sweden

Information Note on the Court’s case-law 201

November 2016

Naku v. Lithuania and Sweden - 26126/07

Judgment 8.11.2016 [Section IV]

Article 6

Civil proceedings

Article 6-1

Access to court

Grant of State immunity from jurisdiction in respect of claim for unfair dismissal by Embassy employee working on cultural and information matters: inadmissible (Sweden); violation (Lithuania)

Facts – The applicant worked at the Swedish Embassy in Vilnius (Lithuania) from 1992 until 2006. She was initially employed as a receptionist and translator but in 2001, following a letter she had sent to the Swedish ambassador requesting a salary increase, her contractual work description was amended to cover cultural and information matters. The applicant was also chair of the trade union for locally employed staff at the Embassy. In 2005 she was dismissed from her job at the Embassy. She challenged her dismissal in the Lithuanian courts but they declined jurisdiction on the grounds of State immunity after the Supreme Court noted that under Lithuanian law everyone working in a diplomatic representation of a foreign State contributed to the performance of the sovereign rights of that State, carrying out public-law functions, and was therefore considered to be employed in the civil service of that State.

In the Convention proceedings, 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 Lithuanian courts.

Law – Article 6 § 1

(a) Complaint against Sweden – Although Sweden was the defendant in the proceedings brought by the applicant, the proceedings had been conducted exclusively in Lithuania and the Lithuanian courts were the only bodies with sovereign power over the applicant. The fact that the Swedish ambassador had raised the defence of sovereign immunity before the Lithuanian courts, where the applicant had decided to institute proceedings, did not suffice to bring the applicant “within the jurisdiction” of Sweden for the purposes of Article 1 of the Convention.

Conclusion: inadmissible (incompatible ratione personae).

(b) Complaint against Lithuania – On the basis of her job description in the contract of 2001 and subsequently, the Court was ready to accept that the applicant worked on culture and information matters and was thus involved in the Embassy’s activities in that field. It noted, however, that her job description stated that she was to act “in consultation”, or “in cooperation with and under the guidance” of Swedish diplomatic staff. Furthermore, although the applicant was also the head of the trade union for locally employed staff, it had not been shown how those duties could objectively have been linked to Sweden’s sovereign interests.

While the Court could not overlook the applicant’s own written statement which accentuated the importance of her duties at the Embassy in her request for a rise in salary or the conflict between her and the new counsellor for cultural affairs which had later arisen over her responsibilities, it was precisely the scope of the applicant’s actual duties that should have been examined in substance by the Lithuanian courts in order to determine whether she “performed particular functions in the exercise of governmental authority”.

By plainly considering that everyone who worked in a diplomatic representation of a foreign State, including the administrative, technical and service personnel, by virtue of that employment alone in one way or another contributed to the meeting of the sovereign goals of a represented State, and thus upholding an objection based on State immunity and dismissing the applicant’s claim without giving relevant and sufficient reasons, the Lithuanian courts had impaired the very essence of the applicant’s right of access to a court.

Conclusion: violation (unanimously).

Article 41: EUR 8,000 in respect of non-pecuniary damage; a retrial or reopening of the case, if the applicant so requested, represented in principle an appropriate way of redressing the violation.

(See also Cudak v. Lithuania [GC], 15869/02, 23 March 2010, Information Note 128)

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This summary by the Registry does not bind the Court.

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