AS TO THE ADMISSIBILITY OF
Application No. 12516/86
by Ary SPAANS
against the Netherlands
The European Commission of Human Rights sitting in private
on 12 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 June 1986
by Ary SPAANS against the Netherlands and registered
on 3 November 1986 under file No. 12516/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born on 25 December 1948 and
presently residing in The Hague. He is represented before the
Commission by Mr. J. Schokkenbroek, a lecturer in Leiden.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Since 16 October 1981, the applicant had been employed by the
Iran-United States Claims Tribunal as a Registry Clerk, also charged
with translation work, on the basis of an oral employment contract.
The Tribunal had been established by the Claims Settlement
Agreement between the Islamic Republic of Iran and the United States
of America. This agreement is embodied in the Declaration of the
Government of the Democratic and Popular Republic of Algeria
concerning the settlement of claims by the Government of the United
States of America and the Government of the Islamic Republic of Iran,
dated 19 January 1981. Article VI of the agreement provides that the
seat of the Tribunal shall be The Hague, the Netherlands, or any other
place agreed by Iran and the United States. The Tribunal has taken
its seat in The Hague with the permission of the Netherlands
Government. On 18 May 1981 it started to function.
At talks between representatives of the three governments
concerned in November 1981 in which representatives of the Tribunal
also participated, it was decided that the date of commencement for
the privileges and immunities of the Tribunal should be set at
18 May 1981, pending the conclusion of a Host State Agreement. In a
letter dated 2 February 1983, the Secretary-General of the Ministry of
Foreign Affairs of the Netherlands sent a statement in writing to the
Secretary-General of the Tribunal concerning the immunity from the
jurisdiction of Dutch courts which would be enjoyed by the Iran-United
States Claims Tribunal. In this letter the Secretary-General of the
Ministry of Foreign Affairs stated:
"The rule that the Tribunal in its capacity as a body
established under public international law enjoys certain
immunities and privileges in the country where it has its
seat is, in general terms, derived direct(l)y from the
generally accepted principles of international law".
On 19 February 1982 the applicant was offered an employment
contract in writing by the Tribunal. In this contract it was provided
that the final decision in disputes on disciplinary measures between
the Secretary-General, who represents the Tribunal in staff matters,
and the employee concerned, would be taken by the Tribunal itself.
The applicant refused the contract, since it implied a decrease in his
salary of 6000 DFL a year.
The applicant remained employed by the Tribunal on the basis
of the oral contract. By a letter dated 20 September 1982 the
Tribunal informed the applicant, who was ill at that time, that his
"services were no longer required" by the Tribunal. The applicant,
considering this letter as a dismissal on the spot challenged the lawfulness
of the dismissal. He appealed to the District Court (Kantongerecht)
in The Hague and claimed that the Tribunal must pay his salary until
his labour contract would have been terminated in accordance with the
rules of Dutch law. The Tribunal invoked its immunity from
jurisdiction and asked the District Court to declare itself
incompetent. However, in its decision of 8 June 1983, the District
Court declared itself competent to deal with the case.
The Tribunal appealed from this decision to the Regional Court
(Arrondissementsrechtbank) in The Hague. In its decision of 9 July
1984, the Regional Court annulled the decision of the District Court
and declared that it had no jurisdiction to deal with the case, despite the
applicant's defence that at the moment of concluding the contract with
the Tribunal no other legal remedy in labour disputes was available to
employees of the Tribunal.
In its decision of 20 December 1985 the Supreme Court (Hoge
Raad) confirmed the decision of the Regional Court. The Supreme Court
held, inter alia, that under present international law an
international organisation is, in principle, not subject to the
jurisdiction of the courts in the Host State concerning disputes that
have a direct connection with the fulfilment of the organisation's
tasks.
COMPLAINTS
The applicant complains of having had no access to a court or
tribunal in the determination of the legal validity of the unilateral
termination of his labour contract with the Iran-United States Claims
Tribunal. He invokes Article 6 para. 1 of the Convention.
In addition the applicant complains that his dismissal put an
end to the enjoyment of his salary, while he could not contest his
dismissal before a national authority. He invokes Article 13 of the
Convention in connection with Article 1 of Protocol No. 1.
The applicant holds the Netherlands responsible for the
alleged violations of the Convention. He submits that it is doubtful
whether the Iran-United States Claims Tribunal is an international
organisation. Therefore, the Netherlands has granted immunities and
privileges without there being any obligation to do so.
The applicant further submits that, even assuming that the
Tribunal is an international organisation, it cannot be maintained
that immunity from jurisdiction extends to disputes concerning labour
contracts with lower, non-diplomatic staff members.
The applicant subsequently submits that the Netherlands, as
the Host State, should have taken care that employees of the Tribunal
had access to an independent and impartial tribunal in cases of labour
disputes.
The applicant finally submits that, since the Netherlands has
consented in the establishment of the Tribunal in the Netherlands, they
have to bear the consequences of that decision and of the granting of
immunities to the Tribunal, by paying financial compensation to the
applicant.
THE LAW
The applicant complains that he had no access to an
independent and impartial tribunal in respect of his dismissal. He
invokes Article 6 para. 1 (Art. 6-1) of the Convention. Since the
dismissal put an end to the enjoyment of his salary he also invokes
Article 13 (Art. 13) of the Convention in connection with Article 1 of
Protocol No. 1 (P1-1).
The Commission must first decide whether the Netherlands can
be held responsible for the alleged violations of the Convention in
the present case. Under Article 1 (Art. 1) of the Convention the High
Contracting Parties to the Convention undertake to secure the rights
and freedoms defined in Section I of the Convention to everyone within
their jurisdiction. The question is, therefore, whether the
applicant, being an employee of the Iran-United States Claims
Tribunal, was within the jurisdiction of the Netherlands.
The Commission notes that the Netherlands granted the Tribunal
immunity from suit before the Dutch Courts under a privileges and
immunities agreement to take effect from the day the Tribunal
started functioning. When the applicant brought the case concerning
his dismissal before the Dutch courts, the Tribunal invoked its
immunity from the jurisdiction of the Dutch Courts. The Regional Court
and the Supreme Court found that they had no jurisdiction to entertain
the dispute.
Because of the immunity enjoyed by the Tribunal, the
administrative decisions of the Tribunal are not acts which occur
within the jurisdiction of the Netherlands within the meaning of
Article 1 (Art. 1) of the Convention and thus do not engage the
responsibility of the Netherlands under the Convention (see No.
6231/73, Dec. 28.5.75, D.R. 2 p. 72).
The Commission notes that it is in accordance with
international law that States confer immunities and privileges to
international bodies like the Iran-United States Claims Tribunal
which are situated in their territory. The Commission does
not consider that such a restriction of national sovereignty in order
to facilitate the working of an international body gives rise to an
issue under the Convention.
It follows that the application must be rejected as
incompatible ratione personae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For this reason, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)