In the case of Wallishauser v. Austria,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 26 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
156/04) against the Republic of Austria lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Austrian national, Mrs Roswitha Wallishauser (“the
applicant”), on 15 December 2003.
The applicant was represented by Mr M. Celar, a
lawyer practising in Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H. Tichy, Head of the International Law
Department at the Federal Ministry for European and International Affairs.
The applicant alleged, in particular, that she
did not have access to court in connection with her claim for salary payments
arising out of her employment contract with the embassy of the United States of
America in Vienna.
On 25 October 2006 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1). On
27 March 2009 the Court informed the parties of its decision of 26 March to
adjourn the proceedings pending the outcome of the Grand Chamber proceedings in
the cases of Cudak v. Lithuania, no. 15869/02, and Sabeh El Leil v.
France, no. 34869/05. Following delivery of the Cudak
judgment on 23 March 2010, the Chamber decided on 3 June 2010 to resume the
proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1941 and lives in Vienna.
A. Background
The applicant had been an employee of the embassy
of the United States of America in Vienna since March 1978. From January 1981 onwards
she had a contract of indefinite duration and worked as a photographer at the
embassy. Following an accident in 1983 the competent authority issued a
decision stating that she qualified for protection under the Disabled Persons
(Employment) Act (Invalideneinstellungsgesetz). Following a further
accident, classified as work-related, the embassy dismissed her in September
1987.
Her dismissal was declared void
by the Vienna Labour and Social Court (Arbeits- und Sozialgericht) on
the ground that it required the prior agreement of the competent authority
under the Disabled Persons (Employment) Act. The court dismissed the argument submitted
by the United States that it lacked jurisdiction on account of the United
States’ immunity. It found that, while foreign States enjoyed immunity with
regard to acta iure imperii, they came within the jurisdiction of the
domestic courts with regard to acta iure gestionis. The conclusion and performance
of an employment contract fell within the latter category. The Supreme Court (Oberster
Gerichthof) upheld that judgment on 21 November 1990, noting that the United States had not maintained the objection of State immunity in the further course of
the proceedings.
As a result of the above
proceedings, the applicant continued to have a valid employment contract with
the United States embassy in Vienna. However, the latter refused to make use of
her services. Instead, on 31 January 1991, they applied to the Vienna
Committee for Disabled Persons requesting retroactive approval of the applicant’s
dismissal or, alternatively, agreement to a future dismissal. The Committee
refused to grant retroactive approval for the applicant’s dismissal of
September 1987 but gave its approval for a future dismissal. The competent
Federal Ministry upheld that decision. On 13 September 1994 the Administrative Court, ruling on a complaint by the applicant, set aside the decision to grant
approval for the applicant’s future dismissal, finding that the authorities had
failed to establish relevant facts and had not duly weighed the parties’
interests. The case was referred back to the Committee. On 16 January 1996 the United States withdrew its application, stating that it had always maintained that the
application of the Disabled Persons (Employment) Act to employees of the
embassy interfered with the country’s sovereignty.
Meanwhile, the applicant
brought proceedings against the United States requesting payment of her salary.
In a first set of proceedings, concerning salary payments up to June 1995, the United States unsuccessfully raised an objection of jurisdictional immunity. Subsequently,
the United States paid the applicant salary arrears of 3.7 million Austrian
schillings (approximately 269,000 euros (EUR)). On the occasion of the payment,
the lawyer who had represented the United States in the proceedings informed
the applicant by a letter dated 16 October 1996 that the payment did not imply any
acceptance of the Austrian courts’ judgments and that the United States
considered her employment contract to be terminated and would, if she raised
any further claims, “make use of its diplomatic rights and immunities”.
Further proceedings relating to the payment of salary
from July 1995 to August 1996 led to a final default judgment by the
Vienna Labour and Social Court. However, the United States did not pay the amount
awarded to the applicant.
The applicant also unsuccessfully
brought proceedings against the United States claiming reimbursement of the
social security contributions which she had been ordered to pay by the Austrian
authorities and a part of which the employer was, under her employment
contract, obliged to refund. In those proceedings the United States authorities refused to serve the summons to attend the hearing. The Austrian
courts dismissed the applicant’s request for a judgment in default. Their
position was upheld by the Supreme Court’s judgment of 11 June 2001 (see below,
paragraph 28).
B. The proceedings giving rise to the present
application
On 29 December 1998 the applicant brought an
action against the United States of America before the Vienna Labour and Social Court, claiming salary payments from September 1996 onwards. The court scheduled a first
hearing for 20 October 1999.
An attempt to serve the
applicant’s action and the summons to the hearing on the United States through the Austrian Ministry of Foreign Affairs, under section 11(2) of the
Service Act (Zustellgesetz), failed. According to the file a staff
member of the Austrian embassy in Washington handed these documents over to a
staff member of the United States Department of State. However, by letter of 25
January 2000 the Ministry of Foreign Affairs informed the Ministry of Justice,
which in turn informed the Vienna Labour and Social Court, that the United States authorities had refused to serve the summons and had returned the documents at issue
to the Austrian embassy in Washington. The letter was accompanied by a note from
the United States Department of State informing the Austrian Ministry of
Foreign Affairs that the United States wished to assert its immunity in any
case brought by the applicant. In a letter of 4 February 2000 the Ministry of
Foreign Affairs also informed the applicant accordingly.
On 18 February 2000 the Vienna Labour and Social Court dismissed the applicant’s request for a judgment in default, noting that it had
been impossible to summon the defendant. An appeal by the applicant to the
Vienna Court of Appeal (Oberlandesgericht) was unsuccessful.
The Supreme Court dismissed her appeal on points
of law on 5 September 2001. Referring to its judgment of 11 June 2001 in a
parallel case brought by the applicant (see paragraph 28 below), it noted that
the summons had not been duly served on the defendant, namely the United States
Department of Justice. Consequently, the conditions for giving a judgment in
default were not fulfilled.
By a decision of 29 October 2001 the Vienna
Labour and Social Court held that the applicant’s action and the summons to the
hearing had not been served on account of the manifest refusal of the United States to comply with the request for service. It followed that further attempts to
summon the defendant did not have any prospects of success.
Subsequently, the applicant requested that the summons
be served by means of publication under Article 121 § 2 of the Code of Civil
Procedure (Zivilprozeßordnung) or, alternatively, that it be served on a
court-appointed representative (Curator) under Article 116 of the Code.
By decision of 25 April 2002 the Vienna Labour
and Social Court appointed a lawyer, Dr G., to represent the United States of America. It noted that the foreign authorities had refused to serve the summonses
in any of the proceedings brought by the applicant. In the court’s view the United States had wrongly relied on its alleged immunity.
On 18 November 2002 the
Vienna Court of Appeal, following an appeal by Dr. G., quashed that decision. The
relevant part of its decision reads as follows:
“In acting on a request for service, the State to which the
request is made is exercising sovereign powers. This applies even if the court
documents in question are addressed to that State and the authority responsible
for acting on the request for assistance (in this instance the Department of
State) refuses to forward them to the authority empowered to represent the
State in private-law proceedings (in this instance the Department of Justice).
This is not a case of refusal to accept service (§ 20 of the Service Act) but rather
a case of refusal to comply with a request for legal assistance. Such refusal
is a sovereign right of the foreign State, against which a remedy can be sought
only through diplomatic channels ...
The Supreme Court endorsed this legal stance (8ObA 201/00t),
stressing that, as international law currently stands, compliance or refusal to
comply with a request for legal assistance is to be regarded as a sovereign
act, irrespective of the subject-matter of the claim. The nature of the act is
the defining factor. It is beyond doubt that the service of documents in court
proceedings falls within the scope of so-called acta iure imperii and
not acta iure gesionis, as a private individual cannot perform an act of
this nature. Although negotiations have been in progress for some time on an
international agreement concerning service of process on foreign States (which
might make it sufficient for the action to be served on the country’s foreign
ministry), no such agreement has to date been concluded, with the result that
the issue remains unregulated by any treaty between Austria and the United
States.
In a commentary on this decision, which had been published in
JBl 2002, 57, Hintersteininger observed, inter alia, that, while the
restrictive theory of service of process applied by the Supreme Court might be
appropriate for the purposes of avoiding disagreements between States, it was
not a requirement under international law. The author concluded that section 11
of the Service Act – at least as currently applied to judicial proceedings
instituted in Austria against foreign States – amounted to a “self-imposed shackle”
as a result of which the standard of protection of individuals’ legal interests
was subordinated to international-law considerations. Unless and until the
Austrian courts saw fit to apply a different interpretation of the provision in
question – the fact that the Supreme Court, in its 2001 ruling, continued to
apply its case-law from 1963 indicated that this was unlikely – there was an
urgent need for the legislature to enact amending legislation in order to
provide a practical solution to the problem of service of process.
Referring to Hintersteiniger’s international-law argument, the
appellant raises the possibility of transmitting the action and an explanation
of the legal circumstances, together with a translation into the country’s
official language, to the US Department of State through diplomatic channels. In
this case the defendant State would have no justification for returning the
copy of the action at will; in the event of a refusal to accept service, it should
be deemed to have received the request. This would make effective service
possible and would remove the need to appoint a representative.
The objection to this line of argument is that such a procedure
– which from a general international-law perspective is possible – is
incompatible with the applicable legal provisions in Austria. As clarified in 8
ObA 201/00t, the action has to be served on a competent body within the
Department of Justice, which is the authority representing the United States in
the present employment-related proceedings. It is not sufficient for the
document to have somehow reached another authority which appears to be
responsible for forwarding the request for service. Accordingly, it is
incorrect to speak of a refusal to accept service if the document was never transmitted
to the competent authority. In this connection the Supreme Court stressed that,
conversely, it would not be sufficient, in order to institute legal
proceedings, for an action against the Republic of Austria to be received by
the Foreign Ministry if, for whatever reason, it was not forwarded to the
Attorney-General’s Office as the competent authority representing the State in
such matters. The first-instance court already acknowledged that a further
request for service would have little prospect of success in view of the earlier
comments of the US authorities.
Nevertheless, the (definitive) refusal of the US Department of
State to forward court documents concerning the appellant to the Department of
Justice does not justify the appointment of a representative for the defendant
in accordance with Article 116 of the Code of Civil Procedure. As the appellate
court explained in detail in its decision 8 Ra 23/00t, cited above, service
of process on a foreign State is (also) based on section 11(2) of the Service
Act. Hence, for the purpose of performing it, recourse is to be had in any
event to the Federal Ministry of Foreign Affairs. On the basis of this
provision, which takes precedence, service via any means other than the
diplomatic channels to which it refers – for instance, on a court-appointed representative
– is ruled out. In view of the principle whereby a remedy against a refusal to
comply with a request for legal assistance, which flows from the sovereign
power of the foreign State, can be sought only through diplomatic channels (see
SZ 36/26, EvBl 1963/210; for a critical perspective, see Schreuer, Die
Durchsetzung zivilrechtlicher Ansprüche gegen ausländische Staaten, ÖJZ
1991, 41 et seq. [49]), the impugned decision lacks any legal basis.”
On 7 May 2003 the Supreme Court dismissed an appeal
on points of law by the applicant. It started by referring to its decision of 11
June 2001 (see paragraph 28 below) in a previous case brought by the
applicant against the United States. It followed from that decision that the
action brought by the applicant had to be served through diplomatic channels. It
held that Article 121 § 2 of the Code of Civil Procedure, although it
concerned the service of summonses abroad, was not applicable in a case like
the present one in which the person or legal entity to be summoned relied on their
immunity. The applicant’s interpretation of the provision in question would
undermine the concept of immunity.
Only section 11(2) of the Service Act was
applicable. The applicant did not contest the fact that foreign States came within
the scope of that provision as they enjoyed “privileges and immunities” under
international law. In that context the Supreme Court went on to state as
follows:
“No agreement exists between Austria and the defendant
concerning service of process from the perspective of State immunity from
jurisdiction. In the absence of such agreement the generally recognised rules
of international law (Article 9 of the Federal Constitution), together with
section IX of the Introductory Act to the Austrian Jurisdictional Statute (EGJN)
and the principles developed in this connection by the case-law and by legal commentators,
must apply. On that basis it is unanimously agreed that foreign States enjoy
immunity in the exercise of their sovereign powers and are to that extent
exempt from the jurisdiction of the domestic courts (see, among other
authorities, SZ 23/143; Herndl, JBl 1962, 15; JBl 1962, 43; Heß, JBl 1989, 285;
ZfRV 1990, 300 [Seidl-Hohenveldern]; Schreuer, ÖJZ 1991, 41; Fischer, NZ 1991,
154; DRdA 1991/53 [Simotta]; Neuhold/Hummer/Schreuer, Österreichisches Handbuch
des Völkerrechts Bd 1³ para. 834, 837; Seidl-Hohenveldern, Völkerrecht
9 paras. 1462 et seq.; Matscher, loc. cit, Art IX EGJN para. 2, 115 et
seq., 196 et seq.; Mayr in Rechberger, ZPO² Art IX EGJN para. 3 et
seq.). The service of process abroad, as a sovereign act, amounts – in the
absence of an agreement between the States concerned governing the relevant
procedure – to interference with the sovereign rights of the foreign State in
question. For that reason it is a requirement in such cases to have recourse to
the Federal Ministry of Foreign Affairs, which maintains close contact with the
milieu concerned and is competent to take account of the relevant
international-law considerations (RV 162 BlgNR XV.GP 10), as the appellant correctly
points out. However, contrary to her assertion, exclusive recourse to the
Federal Ministry of Foreign Affairs is not merely recommended, but is required
by statute (the mandatory “shall” in section 32(3) of the Jurisdictional
Statute and section 11(2) of the Service Act). The service of documents by
any other means would be in breach of the law (Walter/Mayer, op. cit., section
11 Service Act, footnote 15).
Although Hintersteininger, in her commentary on 8 ObA 201/00t
(JBl 2002, 57) concludes that the “restrictive theory of service of process” is
appropriate for the purpose of avoiding international disagreements, she nevertheless
calls on the legislature to amend section 11 of the Service Act, as she sees
evidence of a “self-imposed shackling” at least in the way in which that
provision is applied. The legislature has not taken any action to date. It
should further be observed that the strict approach to diplomatic immunity can
be traced back to the Jurisdictional Statute, according to which the violation
of immunity renders the proceedings in question null and void, in a manner
which cannot be remedied even by the parties (except by a waiver of immunity)
(§ 42 JN; Ballon, op. cit., § 42 JN para. 3, 14 et seq.; Mayr, op. cit., § 42
JN para. 2, 7).
Contrary to the appellant’s assertion, her request for the
action to be served on the defendant by publication or by the appointment of a
representative does not fall in the present case within the “classic scenario”
under Article 121(2) of the Code of Civil Procedure, but is governed by the
exception thereto and undermines the defendant’s claim to diplomatic immunity.
Accordingly it is not possible, precisely in this case, to proceed on the basis
of that provision. On the contrary – in so far as the proceedings against the
defendant in Austria are concerned – exclusive recourse must be had to
diplomatic channels, as reasoned by the Supreme Court in case 8 ObA 201/00t.”
The Supreme Court’s decision was served on the applicant’s
counsel on 3 July 2003.
C. Further developments
In April 2002 the applicant reached pensionable
age. She gave the United States embassy in Vienna notice of her intention to terminate
her employment contract and applied to the competent Pensions Insurance Office
for an old-age pension from 1 May 2002.
Subsequently, the applicant extended her claim
in the above-mentioned proceedings to salary payments from September 1996 to
April 2002. She requested again that the defendant be summoned to a hearing. In
that context she referred to the 2004 United Nations Convention on Jurisdictional
Immunities of States and their Property (see paragraphs 30 to 34 below), and
argued that, according to Article 22, transmission of the documents to the
United States Department of State through diplomatic channels would be
sufficient to effect service. The summons was handed over to a staff member of
the United States Department of State but was again returned to the Austrian
embassy in Washington with the remark that the United States wished to assert its
immunity in any case brought by the applicant.
On 17 July 2006 the Vienna Court of Appeal upheld
the first-instance court’s decision refusing to give a default judgment.
Referring to the Supreme Court’s case-law, it held that the refusal to serve a summons
was an act of sovereign power. It noted, inter alia, that the Convention
relied on by the applicant did not apply to proceedings which had been
initiated before its entry into force and added that there were no rules of
customary international law to indicate that States could not rely on immunity
in the context of the service of a summons. No further appeal on points of law lay
against this decision.
II. RELEVANT DOMESTIC AND INTERNTIONAL LAW
A. Domestic law and practice
Section 11 of the Service Act (Zustellgesetz)
deals with the service of official documents abroad and the service of official
documents on foreign nationals and foreign States or international
organisations enjoying privileges and immunities under international law. It
provides as follows:
“1. Service of process abroad shall be effected in
accordance with existing international agreements or as provided for by the
laws or other legal provisions of the State in which service is to be effected
or by international custom, if necessary with the cooperation of the Austrian
diplomatic authorities.
2. Service of process on foreign nationals or
international organisations which enjoy international privileges and immunities
shall be effected through the intermediary of the Federal Ministry of Foreign
Affairs, irrespective of where their place of residence or headquarters is
located.”
The relevant provisions of the Code of Civil
Procedure (Zivilprozeßordnung) read as follows:
Article 116
“In the case of persons on whom process can only be served by publication
because their address is unknown, the court shall appoint a representative
(Article 9), on application or of its own motion, if the persons concerned
would have to perform a step in the proceedings as a result of being served
with the documents, and in particular if the documents to be served contain a
summons.”
Article 121
“1. In the case of service on persons outside the
country who do not fall into the categories of recipients referred to in
section 11(2) and (3) of the Service Act, the Federal Minister of Justice, in
agreement with the Federal Chancellor, may order service to be effected by
post, using the system of advice of receipt customarily used for international
postal deliveries, to countries in which service in accordance with section
11(1) of the Service Act is not possible or gives rise to difficulties.
2. If no confirmation is received within a
reasonable time that process has been served on an individual outside the
country, the applicant party may request, depending on the circumstances, that
service be effected by publication (section 25 of the Service Act) or by the
appointment of a representative under Article 116. This shall also apply in
cases where an unsuccessful attempt has been made to serve process abroad or
where the request for service has no prospect of success owing to a manifest
refusal by the authorities of the foreign State to comply with the request for
legal assistance.”
In a judgment of 11 June 2001 (8ObA
201/00) in a related case concerning claims for reimbursement of social
security contributions brought by the applicant against the United States (see
paragraph 11 above), the Supreme Court held as follows:
“The appellate court was correct in taking the view that, as
international law currently stands, the decision to comply with or refuse a
request for legal assistance is a sovereign act, irrespective of the subject-matter
of the request. The nature of the act is the defining factor. It is beyond
doubt that the service of documents in court proceedings falls within the scope
of acta iure imperii and not acta iure gesionis, as a private
individual cannot perform an act of this nature (Seidl-Hohenfeldern,
Völkerrecht 317 et seq., esp. paras. 1472-79; Neuhold/Hummer/Schreuer, Österreichisches
Handbuch des Völkerrechts3, para. 837).
The criticism of the current legal situation raised by the
appellant, relying on Schreuer (ÖJZ 1991, 41 et seq. [esp. 48 et seq.], does
not alter the fact that, although negotiations have been in progress for some
time on an international agreement concerning service of process on foreign
States (which might make it sufficient for the action to be served on the
country’s foreign ministry), no such agreement has to date been concluded, with
the result that the issue remains unregulated by any treaty between Austria and
the United States. It is not disputed that, under American Federal law, the
United States is represented by the Department of Justice in matters which are
to be regarded as acta iure gestionis (compare 9 ObA 244/90 = SZ 63/206
with further references concerning the employment contract between the claimant
and the defendant). The action must therefore be served – as correctly
requested by the appellant herself – on a body within that authority. It is not
sufficient – as the appellant has claimed in the appeal proceedings – for the
document to have somehow reached another authority which is meant to be
responsible for forwarding the request for service (the Department of State
(Foreign Ministry)). Conversely, it would not be sufficient, in order to
institute legal proceedings, for an action against the Republic of Austria to
be received by the Foreign Ministry if, for whatever reason, it was not
forwarded to the Attorney-General’s Office, which is the competent authority in
such matters.”
B. International law
1. The 1972 European Convention on
State Immunity
The 1972 European Convention on State Immunity
(“the Basle Convention”) entered into force on 11 June 1976 after its
ratification by three States. It has been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kindgom)
and signed by one State (Portugal). On 11 June 1976 it entered into force in
respect of Austria, which had ratified it on 10 July 1974. The relevant
provisions read as follows:
Article 5
“1. A Contracting State cannot claim immunity from
the jurisdiction of a court of another Contracting State if the proceedings
relate to a contract of employment between the State and an individual where
the work has to be performed on the territory of the State of the forum.
2. Paragraph 1 shall not apply where:
a) the individual is a national of the employing
State at the time when the proceedings are brought;
b) at the time when the contract was entered into
the individual was neither a national of the State of the forum nor habitually
resident in that State; or
c) the parties to the contract have otherwise agreed
in writing, unless, in accordance with the law of the State of the forum, the
courts of that State have exclusive jurisdiction by reason of the
subject-matter. ... ”
Article 16
“1. In proceedings against a Contracting State in a court of another Contracting State, the following rules shall apply.
2. The
competent authorities of the State of the forum shall transmit
the original or a copy of the
document by which the proceedings are instituted;
a copy of any
judgment given by default against a State which was defendant in the
proceedings,
through the diplomatic channel to the Ministry of Foreign
Affairs of the defendant State, for onward transmission, where appropriate, to the
competent authority. These documents shall be accompanied, if necessary, by a
translation into the official language, or one of the official languages, of
the defendant State.
3. Service of the documents referred to in paragraph
2 is deemed to have been effected by their receipt by the Ministry of Foreign
Affairs. ...”
2. The 2004 United Nations Convention on
Jurisdictional Immunities of States and their Property
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 and administration (acta jure gestionis) (see Sabeh
El Leil v. France [GC], no. 34869/05, §§ 18-23, 29
June 2011; see also Cudak
v. Lithuania [GC], no.
15869/02, §§ 25-33, ECHR 2010).
The Convention was opened for signature on 17
January 2005 and has not yet entered into force. Austria signed the Convention
on 17 January 2005 and ratified it on 14 September 2006. The United States has not ratified the 2004 Convention, but did not vote against it when it was
adopted in the General Assembly of the United Nations.
The draft text of the Convention was prepared by
the United Nations International Law Commission (ILC) which, in 1979, was given
the task of codifying and gradually developing international law in matters of
jurisdictional immunities of States and their property. It produced a number of
drafts that were submitted to States for comment. The Draft Articles that were
used as the basis for the text adopted in 2004 dated back to 1991. They were
subsequently further revised by the Sixth Committee of the United Nations
General Assembly. States were again given an opportunity to comment.
Article 11 (contracts of employment) of the 2004
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.”
Article 22 (Service of
process) of the 2004 Convention reads as follows:
“1. Service of process or writ or other document
instituting a proceeding against a State shall be effected:
(a) in accordance with any applicable
international convention binding on the State of the forum and the State
concerned; or
(b) in accordance with any special
arrangement for service between the claimant and the State concerned, if not
precluded by the law of the State of forum; or
(c) in the absence of such a convention or
special arrangement:
(i) by transmission through diplomatic channels to
the Ministry of Foreign Affairs of the State concerned; or
(ii) by any other means accepted by the State
concerned, if not precluded by the law of the State of forum.
2. Service of process referred to in paragraph (1) (c)
(i) is deemed to have been effected by receipt of the documents by the Ministry
of Foreign Affairs.
3. These documents shall be accompanied, if necessary,
by a translation into the official language, or one of the official languages,
of the State concerned.
4. Any State that enters an appearance on the merits
in a proceeding instituted against it may not thereafter assert that service of
process did not comply with the provisions of paragraphs 1 and 3.”
In the Draft Articles on Jurisdictional
Immunities of States and their Property, adopted by the International Law
Commission at its forty-third session in 1991, and submitted to the General Assembly
at that session, Article 11 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.”
In the commentary on the International Law
Commission’s Draft Articles of 1991, it was stated that the rules formulated in
Article 11 appeared to be consistent with the trend in legislative and treaty
practice in a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p.
44, § 14).
In the Draft Articles of 1991, Article 20
(service of process) read as follows:
“1. Service of process or writ or other document
instituting a proceeding against a State shall be effected:
(a) in accordance with any applicable
international convention binding on the State of the forum and the State
concerned; or
(b) in the absence of such a convention:
(i) by transmission through diplomatic channels to
the Ministry of Foreign Affairs of the State concerned; or
(ii) by any other means accepted by the State
concerned, if not precluded by the law of the State of forum.
2. Service of process referred to in paragraph 1 (b)
(i) is deemed to have been effected by receipt of the documents by the Ministry
of Foreign Affairs.
3. These documents shall be accompanied, if
necessary, by a translation into the official language, or one of the official
languages, of the State concerned.
4. Any State that enters an appearance on the merits
in a proceeding instituted against it may not thereafter assert that service of
process did not comply with the provisions of paragraphs 1 and 3.”
The International Law Commission’s commentary on that
Article (ILC Yearbook, 1991, Vol. II, Part 2, p. 60, §§ 1-3), in so far as
relevant in the present context, stated as follows:
“(1) Article 20 relates to a large extent to the
domestic rules of civil procedure of States. It takes into account the
difficulties involved if States are called upon to modify their domestic rules
on civil procedure. At the same time, it does not provide too liberal or
generous a regime of service of process, which could result in an excessive
number of judgments in default of appearance by the defendant State. The article therefore proposes a middle ground so as to protect the interests of the defendant State and those of the individual plaintiff.
Paragraph 1
(2) Paragraph 1 is designed to indicate the normal
ways in which service of process can be effected when a proceeding is
instituted against a State. Three categories of means by which service of
process is effected are provided: first, if an applicable international
convention binding upon the State of the forum and the State concerned exists,
service of process shall be effected in accordance with the procedures provided
for in the convention. Then, in the absence of such a convention, service of
process shall be effected either (a) by transmission through diplomatic
channels or (b) by any other means accepted by the State concerned.
Thus, among the three categories of the means of service of process provided
under paragraph 1, an international convention binding both States is given
priority over the other two categories. The variety of means available ensures
the widest possible flexibility, while protecting the interests of the parties
concerned.
Paragraphs 2 and 3
(3) Since the time of service of process is decisive
for practical purposes, it is further provided in paragraph 2 that, in the case
of transmission through diplomatic channels or by registered mail, service of
process is deemed to have been effected on the day of receipt of the documents
by the Ministry of Foreign Affairs. Paragraph 3 further requires that the
documents be accompanied, if necessary, by a translation into the official
language, or one of the official languages of the State concerned. ...”
In respect of Article 20 § 1 the commentary also gives numerous
examples of relevant provisions in national legislation. In addition it refers
to Article 16 §§ 1-3 of the European Convention on State Immunity.
During the drafting process the United States commented on Article 20 of the 1991 Draft Articles (which became Article
22 of the 2004 Convention). It did not object to the rules enshrined in
Article 22 (1) (c) (i) and Article 22 (2).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that she had not had access
to the Austrian courts in connection with her claim for payment of salary from
September 1996 onwards arising out of her employment contract with the embassy
of the United States of America in Vienna. She relied on Article 6 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 ...”
The Government contested that argument.
A. Admissibility
1. Compliance with the six-month rule
The Government submitted that the proceedings
concerning the applicant’s request for a judgment in default had been terminated
by the Supreme Court’s judgment of 5 September 2001. In those proceedings the
question of effective service of the summons on the United States had already
been determined with final effect. Accordingly, the application, introduced on
15 December 2003, had been lodged outside the six-month time-limit.
The applicant contested that view. She asserted
that the proceedings concerning her claim for salary payments from September
1996 onwards had to be considered as a whole. It should not be held against her
that, following the Supreme Court’s judgment of 5 September 2001, she had attempted
to obtain a decision on the merits of her claim by other means, namely by
requesting the appointment of a representative, before lodging her application
with the Court. Those attempts had by no means been without prospects of
success, as was shown by the fact that the first-instance court had granted her
request. Moreover, there had been no case-law on the question whether it was
possible to appoint a representative for a foreign State. That question had only
been settled by the Supreme Court’s judgment of 7 May 2003, served on the
applicant’s counsel on 3 July 2003.
The Court notes that the proceedings at issue in
the present application concerned the applicant’s claim for salary payments
from September 1996 onwards against the United States of America. In both
judgments the Supreme Court considered that the defendant had not been duly
summoned. In its judgment of 5 September 2001 the Supreme Court concluded that
a default judgment could therefore not be issued, and in its judgment of 7 May
2003 it found that the appointment of a representative was not admissible
either. Consequently, the courts could not proceed with the applicant’s case.
Thus, both judgments concerned the question of the applicant’s access to court.
In sum, the Court considers that the proceedings have to be seen as a whole and
that no issue of failure to comply with the six-month rule arises. It therefore
dismisses the Government’s objection.
2. Applicability of Article 6 § 1 of the Convention
The Court observes that the Government did not
contest the applicability of Article 6 § 1 to the present proceedings, which concerned
claims for salary payments arising out of the applicant’s employment contract with
the United States embassy in Vienna. The Court reiterates that in Cudak
(cited above, §§ 39-47) and Sabeh El Leil (cited above, §§ 36-42) it applied,
mutatis mutandis, the principles it had developed for establishing
whether a dispute between a State and a national civil servant fell within the
scope of Article 6 § 1 to a dispute between an employee of an embassy and a
foreign State. According to these principles (see Vilho Eskelinen and Others
v. Finland [GC], no. 63235/00, ECHR 2007‑II, § 62), two conditions
must be fulfilled in order for the respondent State to be able to rely before
the Court on an applicant’s status as civil servant in excluding him or her
from the protection embodied in Article 6. Firstly, 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.
It follows from the domestic court’s decisions
in the previous set of proceedings relating to salary payments up to June 1995
(see paragraph 9 above) that the Austrian civil courts had jurisdiction
over such claims. The applicant thus had, in principle, a right of access to
court and it is therefore not necessary to examine whether the second condition
was fulfilled. In any case, it has not been suggested that the nature of her
post as a photographer was such as to justify excluding her from access to
court. Nor has it been contested that the dispute in issue concerned the
applicant’s “civil rights” within the meaning of Article 6 § 1 of the Convention.
The Court therefore concludes that Article 6 § 1 was applicable to the
proceedings at issue.
3. Conclusion
In conclusion, the Court notes that this
complaint is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant asserted that the present case was
comparable to Cudak (cited above). As in that case, the
proceedings at issue concerned claims arising out of an employment contract
with the embassy of a foreign State, in respect of which the State did not enjoy
immunity. The domestic courts themselves had dismissed the United States’
objection of immunity in the previous set of proceedings brought by the
applicant. It was also clear from that previous set of proceedings that
Austrian law applied to the dispute at issue.
Like in Cudak it followed from Article 11
of the 2004 Convention that the United States could not claim jurisdictional
immunity with regard to the employment dispute at issue. Although that
Convention had been adopted after the final decision in the present case, it
must be considered to codify customary international law, which therefore
applied as such at the time when the contested decisions had been given.
The gist of the present case was that the
Austrian courts, in accepting that the United States’ refusal to serve a summons
on the United States Department of Justice was an act of sovereign power, had disregarded
the fact that the United States could not rely on immunity in respect of the
underlying claim. The Supreme Court, in adopting this approach, had relied on
case-law which did not reflect the current state of international law.
The Austrian courts should either have effected
service according to section 11(1) of the Service Act on the grounds that
the United States did not “enjoy immunity under international law” or, alternatively,
if relying on section 11(2) of the Service Act and effecting service
through diplomatic channels, should have considered that service had been duly effected
as the United States Department of State had actually received the documents at
issue.
The Supreme Court’s view that effective service
required service of the documents on the United States’ Department of Justice
(as the authority competent to represent the State in civil proceedings) was
not in line with the state of international law. On the contrary, it followed
from Article 22 of the 2004 Convention and its predecessor provision, Article
20 of the International Law Commission’s 1991 Draft Articles, that service of
process through diplomatic channels was deemed to have been effected by receipt
of the documents by the Ministry of Foreign Affairs. As the United States
Department of State had received the applicant’s action and the summons to a hearing,
the Austrian courts should have proceeded on the basis that the defendant had
been duly summoned. Consequently, they could and should have appointed a representative
for the United States in order to proceed with an examination of the merits of
the applicant’s claim.
Although the limitation of the applicant’s right
of access to court might be considered to have served a legitimate aim, namely
guaranteeing comity and good relations between States, it had been disproportionate
in her case. In fact the Austrian courts’ legal view did not reflect the state
of international law. It had made it entirely impossible for the applicant to
pursue her claim and had thus impaired the very essence of her right of access
to court.
(b) The Government
For their part, the Government submitted that
the present case had to be distinguished from Cudak (cited above).
That case had concerned the question whether accepting a foreign State’s objection
of State immunity in an employment-related dispute violated the right of access
to court. By contrast, the present case raised the question whether the
procedure of serving a summons in a civil action against a foreign State was as
such to be qualified as a sovereign act.
The Government stressed once more that the question
of international law facing the Austrian courts had been how effective service
of a civil action on the United States was to be carried out and to what extent
the service procedure itself was to be considered as an act of sovereign power.
According to the Supreme Court’s case-law, in particular its decision of 11
June 2001 (see paragraph 28 above), carrying out a request for service of a summons
– or refusing it as in the present case – fell within the category of “acta
iure imperii”. Consequently, it was irrelevant whether the objection of
State immunity could be successfully relied on in relation to the claim at
issue.
In any case, the limitation of the applicant’s
right of access to court had served a legitimate aim, namely compliance with
the generally recognised rules of international law and the promotion of good
relations between States. Section 11 of the Service Act, which had been applied
in the present case, was a reflection of respect for the foreign State’s
sovereignty as required by international law regarding service of process
abroad. After the United States had made it clear that it wished to assert its immunity
in any further case brought by the applicant, the service of the applicant’s action
could only be effected through diplomatic channels under section 11(2) of
the Service Act. Repeated attempts to do so had indeed been made but had been unsuccessful.
The Supreme Court, in its decision of 7 May 2003,
had thus proceeded on the assumption that the United States was entitled under
international law to refuse to serve a summons, in the absence of any agreement
between Austria and the United States which would have obliged it to agree to such
service. Granting any of the measures requested by the applicant, namely
effecting service by publication or appointing a representative in accordance
with Article 116 of the Code of Civil Procedure was excluded as this would have
undermined the principle of respect for another State’s sovereignty and would
have negatively affected good relations between States.
In short, in respecting the United States’
refusal to serve the summonses in the present proceedings, the Austrian courts had
done no more than apply generally recognised rules of international law. There
was thus no indication that they had overstepped their margin of appreciation
and the limitation of the applicant’s right of access to court had therefore
been proportionate.
2. The Court’s assessment
(a) General principles
The Court has recently summarised the applicable
principles in two Grand Chamber judgments, Cudak (cited above) and Sabeh
El Leil (cited above). The relevant
paragraphs of the Cudak judgment read as follows:
“54. 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, 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, and Prince Hans-Adam
II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001‑VIII).
55. However, the right of access to a court secured
by Article 6 § 1 of the Convention 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 of
the right of access to a court 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 Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR
1999‑I; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 98,
ECHR 2001‑V; and Fogarty v. the United Kingdom [GC], no.
37112/97, § 33, ECHR 2001‑XI).
56. 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. 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 Fogarty, cited above, § 35).
57. 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 doctrine of State immunity
(see Kalogeropoulou and Others v. Greece and Germany (dec.), no.
59021/00, ECHR 2002‑X, and Fogarty, cited above, § 36).
58. 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 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).
59. Therefore, in cases where the application of the
principle 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 justify such restriction.”
In its subsequent judgment in Sabeh El Leil
(cited above), the Court reiterated these principles and, summarising its
further findings in Cudak, added the following:
“52. 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, cited above, § 60, and Al-Adsani, cited
above, § 54). 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 (ibid.).
53. 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
(ibid., § 65).
54. Consequently, Article 11 of the not ratified that convention,
provided it has not opposed it either (ibid., §§ 66-67).”
(b) Application of these principles to the present
case
The Court observes that Cudak and Sabeh
El Leil (both cited above) concerned the dismissal of a member of the local
staff of an embassy, a receptionist in the first case and a head accountant in
the second. In both cases the applicants had raised complaints about lack of
access to court after the domestic courts had dismissed their claims for compensation,
upholding the foreign State’s objection based on State immunity.
In the present case it is not in dispute that
the United States could not validly rely on jurisdictional immunity in the
proceedings at issue. The applicant, an Austrian national, had been employed as
a photographer at the United States embassy in Vienna. In proceedings
concerning the lawfulness of the applicant’s dismissal the United States had made an objection of State immunity but apparently did not maintain it
(see paragraph 7 above). In a first set of proceedings relating to salary
claims up to June 1995 the Austrian courts had dismissed the United States’
objection of State immunity (see paragraph 9 above). Subsequently, the applicant
brought an action for further salary payments from September 1996 onwards. In
those proceedings the applicant’s action and a summons to a hearing were
transmitted to the United States Department of State via diplomatic channels.
The latter returned the documents to the Austrian embassy in Washington together
with the information that the United States wished to assert its immunity in any
case brought by the applicant (see paragraph 13 above).
As both parties pointed out, the issue raised by
the present case is whether the Austrian courts’ acceptance of the United
States’ refusal to accept the summonses and to serve them on the Department of
Justice, which had authority to represent the State in civil proceedings, violated
the applicant’s right of access to court. The courts’ acceptance of this
refusal was based on their legal view that the service of a summons in a civil
action against a foreign State was in itself a sovereign act. Consequently, the
refusal had to be accepted, while the nature of the underlying claim was
irrelevant. As a result, the applicant could not obtain an examination of the
merits of her claim before the Austrian courts.
The Court therefore has to examine whether the
limitation of the applicant’s right of access to court served a legitimate aim
and whether the impugned restriction was proportionate to the aim pursued. The Court
has already found 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 Cudak, cited above, §§ 60-62, and Sabeh El Leil,
cited above, § 55). Despite the difference between these cases and the present
case, the Court takes the view that the Austrian courts’ acceptance of the
United States’ refusal to serve the summonses issued to it also served that
legitimate aim.
The Court therefore has to examine the
proportionality of the impugned restriction on the applicant’s right of access
to court. It reiterates that in Cudak and Sabeh El Leil the
domestic courts had dismissed claims by local employees of foreign embassies, accepting
the defendants’ objection of State immunity. The Court noted the development in
international law towards limiting State immunity in respect of
employment-related disputes. That development was reflected in Article 5 of the
1972 European Convention on State Immunity and in Article 11 of the
International Law Commission’s 1991 Draft Articles and is now enshrined in Article
11 of the 2004 Convention.
Furthermore, the Court observed that according
to a well-established principle of international law a rule enshrined in a
treaty could be binding on a State as a rule of customary international law
even if the State in question had not ratified the treaty, provided that it had
not opposed it either (see Cudak, cited above, § 66, and Sabeh El
Leil, cited above, §§ 54 and 57). In Cudak, the Court noted that Lithuania had not objected to the wording of Article 11 of the International Law Commission’s
1991 Draft Articles. Although it had not ratified the 2004 Convention it
had not voted against it either. The Court therefore concluded that the rule
contained in Article 11 of the International Law Commission’s 1991 Draft
Articles applied to Lithuania under customary international law (see Cudak,
cited above, § 67). Similarly, in Sabeh El Leil, the Court noted that France had not opposed the adoption of the 2004 Convention, and was in the process of
ratifying it. It therefore found it possible to affirm that the provisions of
the 2004 Convention applied to France under customary international law (see
Sabeh El Leil, cited above, § 58). In both cases the Court found
that this was a factor to be taken into account when examining whether the right
of access to court, within the meaning of Article 6 § 1, had been respected
(ibid.).
In both cases the Court observed that the domestic
law of Lithuania and France, respectively, had moved away from the doctrine of
absolute State immunity. The Court then went on to examine, on the basis of the
facts, whether the respective applicants could be considered to be covered by any
of the exceptions enumerated in paragraph 2 of Article 11 of the International
Law Commission’s 1991 Draft Articles. Finding that this was not the case, it
concluded in both cases that in upholding the objection based on State immunity
the domestic courts had failed to preserve a reasonable relationship of
proportionality and had impaired the very essence of the applicant’s right of
access to court (see Cudak, cited above, § 74, and Sabeh El Leil,
cited above, § 67).
The Court will examine whether a similar line of
argument can be developed in relation to the issue arising in the present case.
It notes that the International Law Commission’s 1991 Draft Articles contained
a provision on service of process, namely Article 20. Article 20 § 1 (b)
(i) provided that service of process or writ or other document instituting
proceedings against a State was to be effected, in the absence of an applicable
international convention, by transmission through diplomatic channels to the
Ministry of Foreign Affairs of the State concerned. Furthermore, under Article 20
§ 2, service of process referred to in paragraph 1 (b) (i) was deemed to
have been effected by receipt of the documents by the Ministry of Foreign
Affairs. Rules with the same content are contained in Article 22 § 1 (c) (i)
and § 2 of the 2004 Convention (see also the similar provisions which are contained
in Article 16 §§ 2 and 3 of the 1972 European Convention on State Immunity).
The question therefore arises whether the rules embodied
in Article 20 of the International Law Commission’s 1991 Draft Articles applied
to Austria as rules of customary international law. In the Court’s view, the
question is to be answered in the affirmative (see paragraph 38 above and the
reference made in the commentary on Article 20 § 1 of the 1991 Draft Articles
to Article 16 §§ 1 to 3 of the 1972 European Convention on State Immunity). Austria did not object to this provision of the 1991 Draft Articles. It did not vote
against the adoption of the 2004 Convention and subsequently signed and
ratified it. In addition, the Court notes that the United States did not object
to the rules contained in Article 20 § (1) (b) (i) and § 2 of the 1991
Draft Articles either. While it has not signed or ratified the 2004 Convention,
it did not vote against it.
The Court observes furthermore that the Austrian
courts were aware that, on the basis of developments in international law, service
of process on the foreign ministry of another State might be sufficient (see in
particular the Supreme Court’s judgment of 11 June 2001, paragraph 28 above,
and the Vienna Court of Appeal’s judgment of 18 November 2002, paragraph 19
above). However, they limited themselves to stating that no treaty regulating
the issue had been adopted, without examining whether the relevant rules might
apply as rules of customary international law. Moreover, the domestic courts
held that, although the view that service on the foreign ministry of the State
concerned (in this instance the United States Department of State) was
defendable under international law, it was not provided for under Austrian law.
Consequently, they accepted the Department of State’s refusal to serve the
summons on the Department of Justice as a sovereign act. Therefore, the
domestic courts concluded that it had not been possible to duly summon the
defendant and refused to proceed with a default judgment. They likewise found that
the conditions for appointing a representative for the United States had not been fulfilled. As a result, it was impossible for the applicant to
proceed with her case.
In addition, the Court would reiterate that the applicant’s
claim was not one in respect of which jurisdictional immunity could be relied
on. According to the rule contained in Article 11 of the 2004 Convention (and
Article 11 of the International Law Commission’s 1991 Draft Articles) State
immunity does not apply to a State’s employment contracts with the staff of its
diplomatic missions abroad, except in situations that are exhaustively
enumerated in paragraph 2 of that Article and not relevant here (see also
Article 5 of the 1972 European Convention on State Immunity).
In conclusion, by accepting the United States’
refusal to serve the summonses in the applicant’s case as a sovereign act and
by refusing, consequently, to proceed with the applicant’s case, the Austrian
courts failed to preserve a reasonable relationship of proportionality. They
thus impaired the very essence of the applicant’s right of access to court.
There has accordingly been a violation of
Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
AND ITS PROTOCOLS
The applicant complained of a violation of Article
1 of Protocol No. 1 in that the Austrian courts’ decisions had made it
impossible for her to assert her claims and constituted unjustified
interference with her right to peaceful enjoyment of her possessions.
Furthermore, she complained under Article 14 taken in conjunction with
Article 1 of Protocol No. 1 or Article 6 of the Convention that she had
been discriminated against as a disabled person.
The Court reiterates that Article 1 of Protocol
No. 1 only protects existing possessions, including claims, in respect of which
the applicant can argue that he or she has at least a “legitimate expectation”
of obtaining effective enjoyment of a property right (see, for instance Kopecký
v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX). The Court cannot
find that salary claims against an employer which have not been granted by the
domestic courts constitute “possessions” within the meaning of this provision.
Consequently, Article 1 of Protocol No. 1 does not apply, nor does Article 14
taken in conjunction with Article 1 of Protocol No. 1.
It follows that this complaint is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 35 § 3 (a) and must be rejected in accordance with
Article 35 § 4.
In so far as the applicant complains under
Article 14 of the Convention taken in conjunction with Article 6, the Court
finds that there is no indication that the applicant was treated differently in
the proceedings at issue on account of her disability. The courts, in
accordance with their case-law, considered that the United States’ refusal to
serve the summonses in proceedings concerning the applicant’s salary claims was
to be considered as an act of sovereign power and therefore made it impossible
for them either to give a default judgment, to serve the summonses by any other
means or to appoint a representative for the United States. There is
nothing to suggest that they would have decided otherwise had the applicant not
been disabled.
It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicant claimed pecuniary damage in
respect of her lawyer’s fees and her own expenses. The Court considers that this
claim is in essence one for costs and expenses and will deal with it under that
head.
The applicant claimed 40,000 euros (EUR) in
respect of non-pecuniary damage. She submitted in particular that she had suffered
considerable stress and anxiety as a result of her lack of access to court. She
argued that she had been a single mother, still financially responsible for her
daughter, when she was unlawfully dismissed in 1987. She had a walking
impairment following her accidents and had to live on a very low income,
borrowing money and conducting complex legal proceedings from 1987 until October 1996,
when she eventually received salary payments following the first set of
proceedings. However, that sum had been considerably reduced by income tax and by
her obligation to pay not only the employee’s but also the employer’s social
security contributions. Against that background, the continuing insecurity
caused by the fact that she could not obtain a judgment in respect of her
salary claims for the period starting from September 1996 in the proceedings at
issue had caused her considerable distress.
The Government contended that the finding of a
violation would in itself provide sufficient just satisfaction for any
non-pecuniary damage suffered. In any case, the amount claimed was excessive.
The Court accepts that the applicant has sustained
non-pecuniary damage which the finding of a violation of the Convention in this
judgment does not suffice to remedy (see Cudak, cited above, § 79 and Sabeh
El Leil, cited above, § 72). Making its assessment on an equitable basis, it
awards the applicant EUR 12,000 under this head, plus any tax that may be
chargeable.
B. Costs and expenses
The applicant claimed EUR 54,586.98 in respect
of costs and expenses incurred in the domestic proceedings. This sum includes her
lawyer’s fees, amounting to EUR 27,090.50 and EUR 23,732.45, both including
value-added tax (VAT), and EUR 3,764.03 for her own expenses. She explained
that these were expenses incurred for translations and for contacting various
authorities and organisations, lawyers and law professors in Austria and in the United States and for travelling to Washington in 1995.
In addition the applicant claimed EUR 17,933.38,
including VAT, for the Convention proceedings, composed of EUR 12,279.84 for
the proceedings up to and including the first set of observations and EUR 5,653.54
for the further observations following continuation of the proceedings after
the Grand Chamber’s judgment in Cudak (cited above).
With regard to the costs incurred in the
domestic proceedings, the Government asserted that it had not been shown that
the amounts claimed under the head of lawyer’s fees had been incurred to
prevent or redress the alleged violation. In any case, the fees claimed were
not in line with the Austrian Lawyers’ Fees Act and were thus excessive.
Moreover, it was clear from the applicant’s submissions that an amount of EUR
3,219.55 had been covered by her legal expenses insurance. This sum would have
to be deducted in any event. Furthermore, the Government commented that the
applicant had not shown that a causal link existed between the alleged
violation and her own expenses. Moreover, she had not submitted sufficient evidence
in support of the amount claimed, namely EUR 3,764.03.
In the Government’s view the applicant’s claims
in respect of costs incurred in the Convention proceedings were also excessive.
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 respect of the costs claimed for the domestic
proceedings, the Court notes that some of the lawyer’s bills submitted by the
applicant relate to proceedings which pre-date the proceedings at issue in the
present case. In so far as the bills actually relate to the present proceedings,
not all the items listed concern costs which were necessarily incurred. The
same applies to the costs incurred by the applicant herself. Furthermore, the
Court considers that the costs claimed in respect of the Convention proceedings
are excessive. Regard being had to the documents in its possession and the
above considerations, the Court finds it reasonable to award the sum of
EUR 15,000, plus any tax that may be chargeable to the applicant, covering
costs under all heads.
C. Default interest
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. Declares the complaint concerning lack of
access to court admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant,
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 12,000 (twelve thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 15,000 (fifteen thousand 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
