Sabeh El Leil v. France [GC]

Information Note on the Court’s case-law No. 142

June 2011

Sabeh El Leil v. France [GC] - 34869/05

Judgment 29.6.2011 [GC]

Article 6

Civil proceedings

Article 6-1

Access to court

Civil rights and obligations

Immunity from jurisdiction preventing non-national employee of foreign embassy to challenge dismissal: article 6 applicable; violation

Facts – The applicant is a French national. In August 1980 he was recruited as an accountant in the Kuwaiti Embassy in Paris for an indefinite duration. He was promoted to head accountant in 1985. In March 2000 the Embassy terminated his contract on economic grounds. The applicant appealed before the Paris Employment Tribunal, which found that the dismissal had been without genuine or serious cause and ordered the Kuwaiti Government to pay him various amounts in compensation and damages. Disagreeing with the amounts awarded, the applicant appealed. The Paris Court of Appeal set aside the first-instance judgment finding that, in view of his level of responsibility and the nature of his duties as a whole, the applicant participated in the exercise of the governmental-authority activity of the State of Kuwait, through its diplomatic representation in France. His claims against Kuwait were thus inadmissible because foreign States enjoyed jurisdictional immunity. The Court of Cassation rejected the applicant’s appeal on points of law.

Law – Article 6 § 1

(a)  Admissibility – Exhaustion of domestic remedies: In his appeal on points of law the applicant had challenged the Court of Appeal’s findings as to the exact extent of his duties. He had denied that he had performed his duties autonomously in the interest of the public diplomatic service or had participated in the exercise of the governmental-authority activity of the State of Kuwait. He had also challenged the application of the jurisdictional immunity rule to his case. Under those conditions, the complaint submitted to the Court had thus been relied on in substance before the domestic courts.

Conclusion: preliminary objection dismissed (unanimously).

(b)  Applicability – The Court observed that, according to its judgment in Vilho Eskelinen and Others*, 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 had to 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. In the present case, however, the applicant’s duties in the Embassy could not, as such, justify restrictions on his access to a court based on objective grounds in the State’s interest. Moreover, the applicant’s action before the French courts had concerned compensation for dismissal without genuine and serious cause. His dispute had thus concerned civil rights and Article 6 § 1 was applicable.

Conclusion: applicable (unanimously).

(c)  Merits – Just as the right of access to a court was an inherent part of the fair trial guarantee in Article 6 § 1, so some restrictions on access had likewise to be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the rule of State immunity. However, in cases where the application of the rule of State immunity from jurisdiction restricted the exercise of the right of access to a court, the Court had to ascertain whether the circumstances of the case justified such restriction.

In the present case, the restrictions on the right of access to a court had pursued a legitimate aim, as set out in the Cudak** judgment. The Court thus proceeded to examine whether the impugned restriction of the applicant’s right was proportionate to the aim pursued. In this connection, it was necessary to take into account the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property, which, in Article 11, laid down the principle that the immunity rule did not apply to contracts of employment between a State and the staff of its diplomatic missions abroad, except in the situations exhaustively enumerated therein. 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 that Convention. From his recruitment until his dismissal by the Kuwaiti Embassy, he had successively performed the duties of accountant and then of head accountant. An official note had listed his tasks as head of the Embassy’s accounts department, without mentioning any other tasks inside or outside that department. Similarly, a certificate of employment dated January 2000 had only indicated his post as head of the accounts department. His only other activity had been that of staff representative on an unofficial basis. Neither the domestic courts nor the Government had shown how his duties could objectively have been linked to the sovereign interests of the State of Kuwait. The Court of Appeal had merely referred to the existence of “additional responsibilities”, 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 had not given any more extensive reasoning in its decision. It had confined itself to examining the case in the context of the preliminary admissibility procedure for appeals on points of law – a procedure that permitted a level of legal consideration, concerning the merit of the appeal, that was substantially limited. In addition, the Court of Appeal and the Court of Cassation had also failed to take into consideration the provisions of Article 11 of the 2004 Convention, in particular the exceptions enumerated therein that had to 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 had failed to preserve a reasonable relationship of proportionality. They had thus impaired the very essence of the applicant’s right of access to a court.

Conclusion: violation (unanimously).

Article 41: EUR 60,000 in respect of pecuniary and non-pecuniary damage.

* Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, 19 April 2007, Information Note no. 96.

** Cudak v. Lithuania [GC], no. 15869/02, 23 March 2010, Information Note no. 128.

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This summary by the Registry does not bind the Court.

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